2. Background

2.1 The people of Bangladesh waged armed struggle to free the country from military occupation by Pakistani army and thus ensued the Liberation War of 1971 that lasted about nine months from on 26 March to 16 December 1971 eventually resulting in the emergence of a free and independent People’s Republic of Bangladesh. The conflict broke out when the Pakistani army units launched a military operation called Operation Searchlight in East Pakistan against Bengali civilians, students, intelligentsia and ordinary people who demanded military regime, then in power in Pakistan, to adhere to the results of the first ever democratic election held in Pakistan in 1970. The Awami League received overwhelming endorsement and became the majority party of Pakistan, but still, instead of following democratic norms and to handing over power to the elected majority, the Pakistani military junta decided to launch massive armed attack on civilians and began committing crimes all over the country against unarmed civilians, not seen since the end of the second world war.

2.2. As a result of this long military operation led by the Pakistani military with direct participation, support and collaboration of an ideologically motivated small minority, in the end succeeded in killing three million people, committing 300.000 rapes, and deporting 10 million people to neighbouring India, and half of 75 million population internally displaced. The crimes committed in 1971 in Bangladesh in terms of brutality, atrocity and heinousness has still regarded one of the major occurrences since Holocaust. In perpetrating these crimes, the occupying Pakistani army and their auxiliary paramilitary forces (e.g., Razakar, al-badar etc) did not regard the minimum norms and standards of international war laws (jus in bello).

2.3. But the perpetrators of these unprecedented crimes enjoyed decades impunity and remained unaccountable until now while victims suffered in agony and lack of justice. There were however nationwide campaign for justice over these years and in last general election in 2008, the Awami League-led 14-party alliance promised to end this culture of impunity and to initiate legal process to try those responsible for committing international crimes in 1971. Thereafter, the government that formed after the election set-up the ICT on 25 March 2010. The Bangladesh government is pledge-bound to its people and to the world to end impunity to those who committed crimes such as genocide, crimes against humanity and other international crimes on the territory of Bangladesh.

3. The International Crimes (Tribunals) Act, 1973

3.1. The International Crimes (Tribunals) Act 1973 was enacted by the Bangladesh Parliament which is vested with the legislative powers of the Republic under the Constitution. After detailed deliberation and taking experts advise, the Parliament unanimously adopted the ICTA to “provide for detention, prosecution and punishment of persons of genocide, crimes against humanity, war crimes and other crimes under international law, and for matters connected therewith” (Preamble).

3.2. The Parliament enacted ICTA to provide for domestic mechanism to address large scale crimes committed in Bangladesh during the war of liberation of Bangladesh in 1971. The crimes included targeted killings of certain religious and national groups such as Bengalees and Hindus, widespread, systematic as well as indiscriminate killings of civilians including women and children. The women were particularly targeted for rapes and assaults. Hindus were killed and or forcibly converted to Muslim. Crimes also included wanton destruction of villages and towns, and looting of properties. As noted above, 10 million people were deported to India. In short, Crimes against humanity, Crimes against peace, Genocide, War Crimes and other crimes under international law were committed at an unprecedented scale.

3.3. These crimes caused serious concerns to the international community, and violated numerous provisions of international humanitarian laws, customary international laws, and civilized practices. The Government of Bangladesh decided to investigate and prosecute those involved and responsible and the ICTA created necessary legal framework for the justice process to begin. Moreover, the Government was mindful about its international obligations and of customary international law including its duly to investigate and prosecute all crimes as well as crimes of international concern and international crimes.

3.4. The ICTA has been a unique piece of legislation as in 1973, hardly any country in the world had developed such a comprehensive legal infrastructure to enable national jurisdiction to try international crimes committed by nationals of any country in the territory of Bangladesh (ICTA Section 3. 1). It created a complete legal order, considering gravity of crimes involved as well as limitations of ordinary criminal procedures, that provided no avenues to address international crimes and for the first time, and enabled establishment of the International Crimes Tribunals (ICT).
3.5. Nature of ICTA

3.5.1. It is important that the true nature of this ongoing process is understood. The Act itself is a domestic law, passed by the Parliament of Bangladesh. It needs to be clarified that this justice process was never part of any intervention by the international community, nor a result of any international compromise, unlike most justice initiatives of its kind that have taken place in the international arena. The justice process that this Act envisaged setting up is purely a domestic process. This means, the International Crimes Tribunals in Bangladesh is not ‘international’ in nature, but for all meaning and purposes they are ‘domestic’. The only international element in the scheme of things is the nature of the offences, that is, the “international crimes”. Although these crimes, due to their nature and trajectory of developments, have historically been a part of international criminal law, the Act internalised these crimes and thus made them a part of the jurisprudence of the Tribunal and of Bangladesh’s legal system. It in fact should be seen as internalization of international law in domestic legal order of Bangladesh which was done pursuant to international obligations of Bangladesh to deal with international crimes as well as to ensure justice to millions of victims of crimes committed in 1971.

3.5.2. The Crimes under the ICTA are all crimes under customary international law and regarded as international crimes. Although the Act has been enacted in 1973, the core crimes remained same until today and understood now exactly as was when the law was adopted. The Act however expanded the definition of Genocide to include “political group” as one more “group”. This was again based on prevailing notion of Genocide as reflected in the first UN General Assembly Resolution no 95(1) adopted on 11 December 1946 that reads as follows:

The Crime of Genocide

Genocide is denial of right of existence of entire human groups, as homicide is denial of right of existence shocks conscience of mankind, results in great loss of humanity in the form of cultural and other contributions represented by human groups, and is contrary to moral law and to the spirit and aims of the United Nations.

Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part.

The punishment of crime of genocide is a matter of international concern.

The General Assembly, therefore,

Affirms that the genocide is a crime under international law which the civilised world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials, or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable;

Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime.”

However, the political group was left out in the final negotiations of the Genocide Convention adopted in 1948, largely because the States during negotiations failed to reach to a consensus but the demand for expanding the ambit of definition of genocide has always been there. Therefore, Bangladesh, having experienced the actual carnage of genocide, quite rightly included the ‘political group’ as part of definition of genocide, adopting the broader ambit of definition as per the UNGA Resolution which should always have been there.

3.5.3. Apart from Crime of Genocide, the ICTA deals with Crimes against humanity, Crimes against peace, War Crimes, Violation of humanitarian rules applicable in armed conflicts laid down in Geneva Conventions of 1949; and attempt, abetment or conspiracy to commit such crimes, and complicity in or failure to prevent commission of such crimes [Section 3 (2) ICTA].

3.6. The Tribunals

3.6.1. In addition to defining norms of international crimes and other definitions, ICTA being a self-contained law, provided for setting up of Tribunals and determined its jurisdiction, powers and functions of investigation and prosecution agencies, procedure of trial, powers of the Tribunal, rights of the accused, judgment and sentence, rights of appeal, and power to formulate rules of procedure etc.

3.6.2. The first International Crimes Tribunal was set up by the Government on 25 March 2010, and the second Tribunal was set up in early 2012. The ICTA is very specific regarding the qualification of the appointee judges in order to ensure a high standard of trial. Section 6(2) of ICTA provides that any person who is a Judge or is qualified to be a Judge, or has been a Judge of the Supreme Court of Bangladesh shall be appointed as Chairman and Member of the Tribunal.  Accordingly, two separate Tribunals have been constituted, each composed of one Chairman and two Members. Out of six members in both the Tribunals, five of them are sitting Justices of the Bangladesh Supreme Court and remaining Member is a senior District Judge having long standing judicial experience in the trial courts. Here it needs to be pointed out that although the Tribunals, by nature, are trial courts, they are like no other trial courts in Bangladesh. In the International Crimes Tribunals – hearing of motions and petitions, monitoring progress of investigations and the safety of the accused during interrogations, admission of evidence, ensuring protection of witnesses and victims for both the prosecution and defence, deciding on guilt and passing of sentences – are all determined and adjudicated by a panel of judges who are very high in rank and rich in experience, maturity, and judicial prudence which are unmatched to any other trial courts in Bangladesh.

Independence of the Tribunals and their fair trial obligations

3.6.3. The ICTA, through amendment in 2009, guaranteed independence of the Tribunal under Section 6.2A which reads as: “The Tribunal shall be independent in exercise of its judicial functions and shall ensure fair trial.” This provision was specifically introduced to protect the Tribunals from potential political or other influences by imposition of this positive duty to act independently.

3.6.4.  Section 6(2A) of the ICTA obliges the Tribunals to ensure fair trial in recognition of the obligation under the Constitution of Bangladesh as well as under international instruments to which Bangladesh is a party to, including the ICCPR. This is a positive legal obligation of the judges to ensure that every aspect of fair trial is ensured throughout the process, for the accused, as well as for the witnesses and victims.

3.7. Prosecution Team and Investigation Agency

3.7.1. Under the ICTA, on 25 March 2010, the Government set up the Prosecution Team [Section 7(1) ICTA] and the Investigation Agency [Section 8(1) ICTA] of the Tribunal and appointed Prosecutors and Investigators respectively. The Prosecutors of the International Crimes Tribunal are all experienced lawyers with a significant number of years of court experience. They are well versed in criminal law and possess considerable expertise at handling criminal trials. Over the years, these Prosecutors have also enhanced a great deal of understanding and knowledge over the theories and concepts surrounding international criminal law and how trials of persons alleged to have committed core international crimes, have been held across the globe. This has been made possible due to the varied exchanges and collaborations between the Prosecution Team as well as the Investigation Agency with many international and national bodies, civil society groups, governmental agencies etc. that are all concerned stakeholders in the process of bringing an end to impunity.

3.8. Investigation and interrogation

3.8.1. During investigation at the pretrial stage, the Act and its Rules put in a number of safeguards to protect the rights of the accused. For example, unlike many other international forums, the accused before the ICT cannot be kept in custody for a long period. The law specifies that the accused shall be tried without undue delay [Rule 43(5)], and in case of the detained accused, the investigation must be concluded within the specified period of one year which may be extended another six months under special circumstances [Rule 9(5)], or else the accused may be released on bail [Rule 9(5)]. Not only that, the Prosecutors are required to submit periodic reports on the progress of the case so that the judges are satisfied of continued detention of the accused [Rule 9(6)]. Usually the accused who are under investigation, are kept in custody, in order to prevent interference with the investigation, tampering with evidence, coercion of witnesses etc. For instance, one of the accused has been enlarged on bail through the period of his investigation to his trial.

3.8.2. The ICTA provides that the accused who are under investigation could be interrogated by the investigators [Rule 16(1)] and prosecutors [Section 8(2) of the ICTA]. However, according to the law, any statements made or information given by the accused during such interrogations cannot be used against the accused or be adduced as evidence during the Trial [Rule 24(1)]. Through this, the law protects the accused from self-incrimination and effectively removes the incentives for coercive treatment of the accused [Rule 16(2)]. In granting permission to interrogate, the Tribunals have put in place extraordinary safeguards, that are – a) – not foreseen in the Act, b) not even practised or available for other accused in Bangladesh, and c) not even provided to the accused in any of the other South Asian countries. For example, during every interrogation, the Tribunals, as a matter of practice, have always ordered that the counsel of the accused and a doctor be present at the place of interrogation, and both be allowed to consult and examine the accused before, after and during mandatory intervals. It may be mentioned here that unlike other jurisdictions, statements made by an accused during such interrogations is not admissible in evidence [Rule 56(3)].

3.8 .3. Even in granting interrogations, the judges of the Tribunal, as a practice, have been very restrictive. The Prosecutors and Investigators are only allowed to interrogate the accused usually only once, and that too for a limited hours during the day specifically set by the Tribunal. In case of one accused, the Tribunal allowed such an interrogation to take place at the comfort of the home of the accused where he was on bail, in the presence of a physician and his counsel. Such orders are unprecedented where a person accused of crimes as serious as international crimes has been allowed to be interrogated under such conditions. This is how the accused individuals are generally treated by the International Crimes Tribunals of Bangladesh.

3.9. Arrest and Detention

3.9.1. The regime for arrest and detention by the Tribunals has been clearly outlined in the ICTA and its Rules of Procedure, like in other jurisdictions. All arrests in relation to investigation and prosecution of crimes under the ICTA are made under the authority and Order of the Tribunal. No investigation officer can arrest any person without securing prior authorisation of the Tribunal. As such, arresting an accused, or detention under ICTA are not matters for the executive, as they are judicial decisions.

3.9.2. Rule 9(1) of the Rules of Procedure permits an Investigation Officer to secure through the Prosecution the arrest warrant from the Tribunal at any stage of the investigation ‘if he can satisfy the Tribunal that such arrest is necessary for effective and proper investigation.’ Such requests for arrests are granted only if the Tribunal is satisfied of its necessity. While the primary objective of such arrest is to facilitate an effective and proper investigation, the continued detention of the accused is periodically reviewed by a judicial panel, which is the ICT, to assess the justification for such detention.

3.9.3. If a person is already in custody in relation to matters other than matters within the jurisdiction of the Tribunals, and if it transpires to the Tribunal that there may be a case against the person to investigate concerning crimes under the ICTA, the Tribunal may, issue a production warrant and take that person’s detention within the Tribunal’s jurisdiction [Rule 9(4)]. This decision is also a matter subject to the Tribunal judges’ satisfaction.

Periodic review of detention

3.9.4. Under Rule 9(6), every detention is subject to a periodic review by the Tribunal judges. The Rule is very explicit that every detention of person under investigation shall be reviewed every three months, and if the Prosecution fails to satisfy the Tribunal that such detention is necessary, the person detained shall be enlarged on bail by the decision of the Tribunal. In ICT, the detention of the accused is periodically reviewed every three months by the Tribunal requiring the Prosecution to justify continued detention of the accused. As Rule 9(6) clearly states:

“After every three months of detention of the accused in custody the investigation officer through prosecutor shall submit a progress report of investigation before the Tribunal on perusal of which it may make a review of its order relating to the detention of the accused.”

3.9.5. A close reading of Rules 9(1), 9(4) and 9(6) of the Rules of procedure suggests that: (a) no person is arrested under the authority of ICTA without the Tribunal judges being judicially convinced and satisfied of the need of such arrest; (b) no person, who is already in custody in relation to matters outside the ICTA, is brought under the jurisdiction of the Tribunal by use of ‘production warrant’ without the Tribunal judges being satisfied of its necessity; and (c ) no person is kept in detention without the Tribunal judges reviewing the justification of their continued detention. In delivering Orders under any of the aforementioned circumstances, the Tribunal judges not only apply the letters of law, but also apply their judicial mind taking into account the overall circumstances pertaining to individual cases, after hearing both the prosecution and the defence, and taking into account any or all documents that may be relevant.

3.9.6. From the explanation above, it is evident that two layers of protections are in place to prevent any kind of arbitrariness while dealing with arrests and detentions. On one hand, the arrest and detention regime is governed by clearly laid down legal provisions for the sake of transparency and predictability. On the other hand, every decision based on these legal provisions is taken by the judges only after having all information, views, arguments and documents at their disposal.

3.9.7. In our view, the arrest and detention regime that is currently in place in Bangladesh under the International Crimes Tribunal, is very much in consonance to the provision of ICCPR, wherein Article 9 has clearly stated that:

“Everyone has the right to liberty and security of person. No one shall be subjected t to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

3.9.8.   While the acknowledgement of the sanctity of liberty and security of a person and does not condone any arbitrariness with regard to arrest or detention as part of Bangladesh’s commitment being a party to ICCPR, it is also recognised that deprivation of liberty has to be in accordance with procedures established by law. In our understanding, an arrest, or a detention, is not arbitrary, if it is carried out in accordance with established procedure of law, which is exactly the case of the ICT’s legal regime as explained. Any arbitrary interpretation of “arbitrariness” other than the one clearly laid down by ICCPR (Art.9, paragraph 1) and recognised by Bangladesh, will defeat the scheme of the Covenant making it unpredictable for a State Party for the purpose of compliance.

UN Working Group’s position on “arbitrariness”

3.9.9. Reading paragraph-39 of Working Group’s report dated 23 November 2011 [Opinion No.66/2011(Bangladesh)], it is our understanding that the Working Group considers ‘inappropriateness, injustice and lack of predictability’ as manifestations of arbitrariness of detention based apparently on the drafting history of Article 9 (Paragraph 1) of the ICCPR in the context of lawful pre-trial detention or remand in custody. However, in our view, a plain reading of Art.9 (paragraph-1) is that as long as the grounds and procedures of ‘deprivation of liberty’ are established by law that is duly enacted by a democratically elected legislature pursuant to constituent provisions, and applied by an independent and competent judicial forum, then such deprivation of liberty cannot be termed ‘arbitrary’. This is particularly so when the judges in question applying their judicial mind decide on such arrest and detention having been privy to facts and circumstances of the cases after hearing all concerned parties.

The issue of “inappropriateness”

3.9.10. Still, even if we consider that arbitrariness is not to be equated ‘against the law’ and that it should be ‘interpreted more widely to include three more elements namely inappropriateness, injustice and lack of predictability’ – under the ICTA, the Rules of Procedure and the practice of the judges, the arrest and detention of the accused individuals facing trial at the Tribunal cannot be conceived as “inappropriate” as they are now being tried for the most serious of crimes under international law. Particularly, if their political strength and economic might as Islamist leaders with organised ideological following along with the willingness of their followers to exert that political strength and economic might is taken into account, such arrests and detention would appear not only appropriate, but may also be considered necessary for the sake of justice to complete the process. When a credible and independent judicial body takes decisions on arrest or detention based on law and procedures that are essentially based on and in line with international law, such decisions are never taken casually. Apart from the law, rules, policy, and practices, the context and individual circumstances (namely, social, political and economic) surrounding a case is also important, which the UN Working Group must also take into consideration and not view the matter in isolation. For instance – the manner in which the forces against justice (namely, the political lobby which is or has been led by individually prominent Islamist leaders such as Ghulam Azam, ATM Azhar and Mir Quasem) have succeeded in delaying the process for the last   four decades, and have mastered sufficient power and influence to potentially frustrate the process. Not only so, the factor that this political lobby is actively favouring the accused individuals and have time and again articulated its readiness to launch fierce and violent anti-ICT campaign including political unrests# – should be taken as sufficient testimony to the appropriateness and necessity of such arrest and detention. It is our view that had the Tribunal not taken these factors into consideration while deciding the arrest and detention of the accused individuals that in itself would have been arbitrary and inappropriate.

The issue of “injustice”

3.9.11. Decisions of the Tribunal for arrest and detention can not either be cursorily described as “injustice”, more so when a number of procedural safeguards, guarantees and checks are in place and are regularly monitored by the Tribunal itself. It cannot be “injustice” when the law itself presumes that every accused is innocent, but it just the sake of investigation considering the surrounding circumstances of the accused and victims that the Tribunal has to favour arrest and detention in cases that are appropriate and necessary. Moreover, as mentioned earlier, that the accused is duly informed about the reasons for arrest, and that his detention is periodically reviewed by a judicial authority.

The issue of “lack of predictability”

3.9.12. In relation to the point of “lack of predictability” concerning arbitrary detention, it is our view that the same is not applicable in the case of ICT. The notion “predictability” in terms of a legal process entails that – (a) the applicable law and procedure are accessible and available to public including the parties; (b) the legal basis of that applicable law and procedure is also known; (c ) stages of the processes (eg: arrest, summons etc) and procedures are clearly enumerated and known; (d) the time frame that are applicable to each of those stages and processes is clearly outlined; (e) the maximum period of detention is clearly articulated in the law; (f) the procedures to challenge arrest and detention is clearly known; (g) a process of automatic review of detention is in place led by the Tribunal judges providing maximum certainty and predictability to the accused about the process, time frame and options available. The ICT Act and its Rules of Procedure ensure such high a degree of certainty to the person arrested and detained, and therefore, it is indeed a process that is “predictable”. The only unpredictable element in the process is its final outcome, which we believe is same in every jurisdiction and in every legal case, and rightly so.

4. Fair Trial Safeguards at the ICT

4.1. The ICTA and its Rules of Procedure afford all the standard fair trial safeguards to the accused. In addition, the Judges have developed practice to progressively interpret the provisions especially when it comes to the rights of the accused and procedural fairness.

Informing accused of the grounds of arrest

4.2. At the time of arrest, the accused individuals are duly furnished copy of the Order of the Tribunal setting out reasons for such issuance of arrest-warrant. The prescribed form of the warrant of arrest (see: ICT-BD Form no.03) specifically mentions that the person is charged with offence punishable under Section 3 of the Act which affirms the jurisdiction of the Tribunal and specifies the crimes. Therefore, at the time of arrest, the accused knows exactly under which provision of the ICTA he/she has been arrested. This is consistent to Article 9(2) of the ICCPR which reads – “anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”. The matching provision is set out in Rule 9(3) of the Tribunals which provides- “at the time of executing the warrant of arrest under sub-rule (2) or later on, copy of allegations is to be served upon such person. Further, Rule 18 (4) provides:

“The chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.”

4.2.1. Moreover, Rule 9(3) of Rules of Procedure further ensure full disclosure of accusations against the accused. It states that “At the time of executing the warrant of arrest, under sub-rule 2 or later on, a copy of allegations is to be served upon such person” This is consistent to Article 9(2) of the ICCPR that states that anyone who is arrested shall be informed, at the time of arrest, of reasons for his arrest and shall be promptly informed of any charges against him.

4.2.2. Therefore, it is evident that all accused arrested by the Order of the Tribunal are fully aware of the grounds of their arrest.

Accused promptly brought before the Tribunal

4.3. The ICTA and its Rules of Procedure mandates that a person ordered pursuant to an Order of the Tribunal is brought before the Tribunal promptly. Rule 34 (1) obligates that “The Police shall produce the arrested accused direct before the Tribunal within 24 (twenty four) hours of arrest excluding the time needed for the journey.” The Constitution of Bangladesh also provides similar provision. This provision is consistent to Article 9(3) of the ICCPR that states, amongst others, that anyone arrested or detained on a criminal charge shall be brought promptly before or other officer authorized by law to exercise judicial power.

Provisional release (bail)

4.4. The Rules of Procedure authorises the Tribunal to release an accused provisionally on bail. Under Rule 34 (2), when the accused is produced before the Tribunal following arrest, “he shall be sent to prison if he is not enlarged on bail by the Tribunal.” Rule 34(3) provides further power release the accused on bail, which reads as follows:

“At any stage of the proceedings, the Tribunal may release an accused on bail subject to fulfillment of some conditions as imposed by it, and in the interest of justice, may modify any such conditions on its own motion or on the prayer of either party. In case of violation of any such conditions the accused may be taken into custody cancelling his bail.”

4.4.1. Rule 34 (3) as such relevant part of Article 9 (3) of the ICCPR where it states that it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any stage of the judicial proceedings, and, should occasion arise, for execution of judgment.

Understanding charge and adequate opportunity to defend

4.5. The accused is provided adequate time and opportunity to prepare his defence, which is one of the key rights the accused enjoy. Section 16(2) of the ICTA 1973 that reads:

“A copy of the formal charge and a copy of each of the documents lodged with the formal charge shall be furnished to the accused person at a reasonable time before the trial; and in case of any difficulty in furnishing copies of the documents, reasonable opportunity for inspection shall be given to the accused person in such manner as the Tribunal may decide.”

4.5.1. The question of ‘adequacy of time’, obviously depends on the circumstances of the case. As such, the Tribunal is quite conscious about ensuring this key right of the accused and in recognition of this right the Tribunal has often granted additional time for preparation of defence. This provision of the ICTA and the practice of the Tribunal is very much consistent to Article 14(3)(b) of the ICCPR which states that an accused ‘to have adequate time and facilities for the preparation or his defence’.

Presumption of innocence and threshold of guilt

4.6. The Rules of Procedure of the Tribunals, which have been formulated by the Tribunal judges, specifically included the notion of presumption of innocence by emphasising it under the corresponding Rule-43(2) as: “A person charged with crimes as described under section 3(2) of the Act shall be presumed innocent until he is found guilty”. At the same time, the Rules of Procedure clearly set the threshold of guilt by requiring that the Prosecution has the burden to prove the guilt of the accused ‘beyond reasonable doubt’ (Rule 50).

Right to be heard, to defend, protection from self-incrimination, and alibi

4.7. The ICTA and its Rules of Procedure provides number of other important safeguards. The law is very clear that an accused cannot be tried twice of the same offences [Rule 43(3)]. Every accused before the Tribunal, as of right, is entitled to a fair and public hearing [Section 6 (2A) , Section 10 (4) ICTA] where he is allowed to defend himself [Section 17 (2)]. Such hearing/defence can be conducted by an engaged lawyer of his choosing [Section 17 (2)] who is legally authorised to appear before the Tribunal. The bottom line is – the accused cannot be punished without being given an opportunity to be heard or, as already mentioned, shall not be compelled to testify against his will or confess his guilt. Even in cases where the plea of alibi of an accused fails, the law is very clear that such a failure cannot be used against the accused [Rule 51 (3)].

Standards of evidence

4.8. As far as admissibility of evidence is concerned, the Tribunal is required to adhere to the very high threshold of “probative value” which also happens to be the set benchmark in other international tribunals prosecuting international crimes. The burden of proof squarely rests on the Prosecution and “beyond reasonable doubt” [Rule 50].

Adequate opportunity for the parties to raise legal and other challenges

4.9. The Rules of Procedure and practice developed by the Tribunal offer adequate opportunity for both parties to petition the Tribunal and mount changes. Although opportunities apply both defence and prosecution, but in reality, so far, the defence has filed infinitely more petitions and raised multiple challenges before the tribunal, ranging from bail petitions, indictment order, charge orders, and challenges to the Act to even of recusal of the Tribunal-I Chairman. The Tribunals, patiently and meticulously heard every petition and application before deciding on them within the bounds of law. The point is, neither the defence (nor the prosecution) is restricted from putting their objections on record and every party is getting their day in the court.

Public hearing in the presence of international observers and the media

4.10. Trials before this Tribunal take place openly so that justice is not only delivered in public but it is also seen to be delivered. Anyone, including observers from international community and the media is free to attend the sessions of the Tribunal, observe its proceedings, and report. There is no restriction whatsoever as regards such attendance except that of the limitation of seating arrangement.

Finding of guilt, proportionality requirement of sentences, and provision of appeal

4.11. The ICTA and its Rules of Procedure requires that when an accused is found guilty and convicted, that the accused shall receive sentence that is proportionate to the gravity of his crimes as it may appear to the Tribunal to be just and proper. The accused can appeal the conviction and sentence before the highest judicial body in Bangladesh, the Appellate Division of the Supreme Court [Section 21 ICTA].

Equality of arms

4.12. The ICTA and the Rules of Procedure framed thereunder, and the judicial practices adopted by the Tribunals guarantees one of the key aspects of fair trial and that is the ‘equality of arms’. In the interest of justice, in many cases the balance of equality is often allowed to lean favourably to the accused. For example, in case of appeal, the Government can only appeal against an “order of acquittal” and not against the adequacy or nature of the “sentence” [Section 21(2)], whereas the accused can appeal against both “conviction and sentence” [Section 21(1)]. As such it is clear that the scheme of the law with regard to the issue as serious as appeal, the law favours the accused more than the Government.

Protection of Witness and Victims

4.13. For the first time in Bangladesh, the Tribunal, through its Rules of Procedures, introduced a witness and victim protection regime. Both prosecution and defence can avail this regime in strictest confidence by applying to the Tribunal. Rule 58A(1) states that -

“The Tribunal, on its own initiative or upon application of either party may issue necessary Orders directing the concerned authorities of the Government to ensure protection, privacy and well-being of the witnesses and/or victims.”

4.13.1. It needs to be noted from the text of the above provision that the Tribunal has stretched the witness/victim protection regime beyond providing protection and privacy, but also “well-being” of victims and witnesses. Well-being has very broad ambit going beyond necessity of protection. The procedure of availing witness and victim protection is also stipulated in the Rules.

4.13.2. It should be noted here that the justice process led by this Tribunal, is also unique and path breaking in another in that no other victims and witnesses in Bangladesh before other courts get the kind of protection that this Tribunal affords.

5. The Constitution and laws of Bangladesh:

5.1. To put the ICTA and its ongoing process in context, a brief reference to the Constitution would be helpful. The Constitution of Bangladesh guarantees full enjoyment of human rights. It provides fundamental rights that guarantees, amongst others, equality before law and equal protection of law, protection of life and liberty, and prohibits discriminatory treatment. The constitution also guarantees rights during arrests, detention, trial and punishment. Specific liberties of speech and expression, association and assembly, trade and occupation, religion and property, security of home and privacy are also ensured.

5.2. The Constitution also provides provisions for Parliament, as Bangladesh has a parliamentary democracy directly elected by the people of Bangladesh. It also has in it details of judicial system, which is headed by the Supreme Court of Bangladesh comprising the High Court Division and Appellate Division. The Supreme Court has the jurisdiction both to interpret laws by the Parliament and declare them null and void when found infringing fundamental rights guaranteed by the constitution.

5.3. The High Court Division is vested with the powers to hear appeals and revisions from subordinate courts, and also to give orders and directives by way of writs to enforce fundamental rights envisioned in the Constitution. It is also entitled to grant other remedies available under the writ jurisdiction. In addition to its writ jurisdiction, the High Court Division enjoys inherent power that allows it to pass any order deemed necessary to prevent abuse of the process of any court, or for the achievement of the ends of justice. The Appellate Division has the power to hear appeals against decisions of the High Court Division or any other equivalent legal institution, including for example against the decisions of the International Crimes Tribunals.

6. International norms:

6.1. Unlike some other jurisdictions, provisions of international law are not directly applicable in legal order in Bangladesh. Such provisions are incorporated as domestic laws before it could be invoked. However, international legal provisions are fairly regularly raised in Courts in Bangladesh.

6.2. The Government of Bangladesh though takes its international obligations seriously. Bangladesh has been parties to number of international instruments, almost all core human rights treaties including the International Covenant on Civil and Political Rights (ICCPR), its First Optional Protocol, the Convention on Prevention and Punishment of Crime of Genocide, Convention against Torture, amongst many others.

6.3. Most notable and relevant here has been ratification by Bangladesh of the Rome Statute of the International Criminal Court. Bangladesh ratified and became 111th States Party to it on 24 March 2010 as it established the International Crimes Tribunal (ICT) to exercise jurisdiction over international crimes committed on the territory of Bangladesh in 1971. Through this, Bangladesh clearly manifested its commitment to end impunity for international crimes at home as well justice for such crimes globally.

6.4. The crimes committed in 1971 predate the Rome Statute as well the ICTA, the legislation that Bangladesh enacted in 1973. Therefore, although as States Party, the Rome Statute can only be looked for inspiration or guidance, where necessary. The Tribunal indeed has passed Order while framing Charges stating that “the Tribunal may take into account jurisprudential developments from other jurisdictions should it feel so required in the interest of justice” [The Chief Prosecutor vs. Delwar Hossain Sayeedi, ICT-BD Case no 1, 2011].

6.5. Besides, it is stated here that the Rome Statute for ICC never denied the primacy of national law (para 10 of the Preamble). Article 10 of the Statute explicitly recognises the existing rules of international law as well as evolving rules. Bangladesh regards ICTA as embodiment of “existing” rules of international criminal law in this regard but at the same time recognises evolution of laws in this area.

7. Fair trial attributes of the ICT:

There exists a number of provisions in the ICTA and its Rules that address elements of fair trial. The ICTA and the Rules explicitly stipulates all the standard elements of fair trial, including for example:

(1) Trial to be held in a fair, impartial and independent tribunal [Section 6(2A) of the ICTA],

(2) Expeditious [Section 11(3)(a)] and public hearing [Section 10(4) of the ICTA],

(3) Accused to know of the charges [Section 16] against him,

(4) Prohibition of prosecution on frivolous charges [Rule 29(1)]

(5) Discharge an accused if the tribunal finds insufficient grounds to continue the trial [Rule 37]

(6) Prohibition of arbitrary arrest, as one can only be arrested or be detained only by the Order of the Tribunal issued under the ICTA and Rules of Procedure [Rule 9]

(7) Right to seek bail. [Rule 34(2)]

(8) Right to bail if investigation is not completed within a specified period [Rule 9(5)]

(9) Protection against self-incrimination [Rule 43(7)]

(10) Safeguards related to confessional statements [Rule 25(2) & Section 14(2)],

(11)Confessional statements must be voluntary and made before a judicial entity [Section 14(2)]

(12) Safeguards against possibilities of torture or coercion, duress or threat of any kind. [Rule 16(2)]

(13) Disclosure of evidence [Section 18(4)] and entitlement of having copy of formal charge together with documents collected during investigation,

(14) Notice to the defence in case of inclusion of additional witnesses by the prosecution [Section 9(4)]

(15) Adequate time for preparing defense [Rule 38(2)]

(16) Right to inspect documents [section 16(2)]

(17) Engaging legal counsel [Section 17(2)]

(18) Appointing defense counsel at state’s expense [Rule 43(1) and Section 12 of ICTA]

(19) Right to conduct own defence [section 17(2)]

(20) The tribunal may allow appearance of foreign counsel defence if Bangladesh Bar Council (i.e. the regulatory authority for practising lawyers) permits so (Rule 42)

(21) Right of the accused to explain charges [Section 17(1)]

(22) Availing services of an interpreter [Section 10(3)],

(23) Full opportunity to present the case of the defence including the right to cross examine prosecution witnesses [section 17(3)],

(24) Right to call their own defence witnesses [Section 10(1)(f)]

(25) Right of the accused to produce evidence in support of his defence [section 17(3)],

(26) Review of the decisions of the Tribunal [Rule 26 (3)],

(27) Right to appeal against both conviction and sentence [section 21(1)]

In addition to the above, there are a few more integral attributes to the justice process under the ICTA which are:

(28) Presumption of innocence (Rule 43(2)

(29) Burden of Proof on prosecution beyond reasonable doubt (Rule 50)

(30) Right to speedy trial [Rule 43(5)]

(31) Prohibition of self incrimination or making confession [Rule 43(7)]

(32) Protection against double jeopardy [Rule 43(3)]

(33) Provision of witness and victim protection [Rule 58A]

(34) Provision for proceedings in camera [Rule 58A (3)]

(35)  Failure to prove the plea of alibi and or the documents and materials by the defence shall not render the accused guilty.

(parts of this post was published and released as an E-book on 14 December 2012 in the event of an ICSF seminar at School of Oriental and African Studies (SOAS), London)

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International Crimes Strategy Forum (ICSF) is an independent global network of experts, activists and organizations, including blog platforms, established with the purpose to understand, research, and support the justice process initiated to end impunity, establish rule of law, and ensure accountability for the international crimes committed in 1971 in Bangladesh.

I.  Introduction

Eight separate cases are being tried before the International Crimes Tribunal (hereinafter, Tribunal) which is comprised of one singular bench of three judges. All cases are each at different stages of the legal process. Currently, witnesses are being heard by the Tribunal in one case, while the other six are in their ‘charge framing stage’. Evidently, the workload of the Tribunal has naturally slowed down the justice process which is otherwise progressing steadily. There have been concerned calls from different sections of the civil society[i] to speed up the trial process, and the Government has also rightly acknowledged that the expansion of the capacity of the on going process is a necessity in order to effectively and efficiently deal with the current and future cases. One of the possible options the Government has reportedly considered is establishing one or more Tribunals alongside the current Tribunal. On 29 January 2012, the Hon’ble Minister of the Ministry of Law, Justice and Parliamentary Affairs Barrister Shafique Ahmed categorically declared before the Parliament that “another war crime tribunal would be formed soon to ease and accelerate the trials of crimes against humanity.”[ii]

This option to set up additional Tribunals is very much within the remit of International Crimes (Tribunals) Act, 1973 (“Act”) as the Government, according to section 6(1), is empowered to set up “one or more Tribunals”. However, before taking a final decision to set up one or more new Tribunals it is important that the Government seriously takes into consideration the experiences of the existing Tribunal, possible legal and institutional consequences of setting up new Tribunal(s), possible relationship issues between the Tribunals, and even critically examine the law itself that refers to one or more Tribunals without actually elaborating how such Tribunals would function concurrently.

It is the International Crimes Strategy Forum’s (ICSF’s) understanding that the rationale behind the creation of additional Tribunals is two-fold: one, distribution of workload leading to a comparatively more speedy and efficient completion of existing cases, and two, enhancing the overall capacity of the current justice process to take up more cases. While ICSF fully agrees with the stated rationale, this memorandum examines the likely effects of establishing additional Tribunals in order to attain the above mentioned rationale, and explores whether the same may be attained by alternative means which would be more conducive to the ongoing process. An informed and objective analysis, this research is grounded in close study of the problems and challenges so far encountered by the Tribunal as an institution, combined with close interactions and engagement of ICSF with the Tribunal, its components, and stakeholders.

Based on this research, the summary of ICSF’s finding regarding the proposal of setting up of additional Tribunal(s) are as follows:

First, although section 6(1) of the Act envisages setting up additional Tribunals, a closer study of the rest of the Act reveals that such an expansion would require facilitating provisions to be inserted to address number of crucial issues such as: jurisdiction, rule-making, allocation and re-allocation of cases, uniformity of application of legal principles etc.

Second, even if new Tribunals are set up relying on section 6(1) of the Act, in order for them to work in tandem, the Act would still require major adjustments to incorporate provision for harmonious functioning of the Tribunals.

Third, adopting an alternative strategy, the Government can still achieve the same objectives, keep the institution intact, and avoid the above mentioned problems simply by increasing the number of Members of the existing Tribunal and setting up one or more Benches (as opposed to one or more Tribunals). However, this too will require some adjustments in the Act although very minor in nature, i.e., requiring small changes in only one place in the Act.

Following are some of the issues that must be taken into account and accordingly resolved if the government takes the route of setting up another Tribunal:

II. The question of jurisdiction

ICSF feels that the first question that needs to be very clearly addressed before additional Tribunals are set up, is the issue of jurisdiction. The procedure under which jurisdiction of individual Tribunals (when there is more than one) would be decided will need to be clearly addressed in the Act. The Act, in its current form, stipulates three different kinds of jurisdictions, namely, territorial[iii], subject-matter[iv], and temporal[v]. In case of a single Tribunal there remains no ambiguity regarding jurisdiction of a case under the Act. However, under the current scheme of the Act, in case of multiple Tribunals, there remains a number of uncertainties, including for example, the procedure for distribution of cases between Tribunals, as the Act does not address the issue whether cases would be accepted by the Tribunals on the basis of subject-matter or territorial jurisdiction. Even if it is accepted that such Tribunals would have concurrent jurisdiction, there still will remain uncertainty as to how the case load will be evenly distributed among the Tribunals. Even without the obstacles regarding transfer and re-allocation of cases which we have discussed subsequently, the current scheme of things presumably envisage that the choice of forum is left in the hands of the Chief Prosecutor who will decide the Tribunal of his choice. However, there is nothing in the Act that provides any indication or guideline or any legal basis whatsoever to the Chief Prosecutor regarding the manner in which his office may exercise this choice of forum. As such, if there are multiple Tribunals, the Chief Prosecutor can, in theory, submit all his cases in one Tribunal ignoring the other.

Ideally, the decision of a Prosecutor regarding the choice of forum in case of multiple tribunals should be governed by clear legal basis and criteria, which must be both transparent and comprehensible to all concerned parties. A matter as important as choice of forum in case of concurrent jurisdiction should not be left to the discretion of anyone. As a matter of policy, a clearly articulated legal criteria is also necessary to avoid subsequent challenges regarding choice of forum as made by the Chief Prosecutor, and also to preempt other applications involving transfer of cases from one Tribunal to another.

If the Government chooses to proceed with the plan of setting up new Tribunals, such a plan will require extensive changes in the Act in order to ensure smooth functioning of the Tribunals.

III. On Rules of Procedure:

The next major concern that the Government must overcome relates to the Rules of Procedure which the Tribunal has the power to enact under Section 22[vi] of the Act. Pursuant to this provision, the current Tribunal has formulated its own Rules of Procedure (“Rules”), which have already gone through two rounds of amendments. The Tribunal proceedings have so far been carried out in compliance with these Rules which were framed by the three Judges of the current Tribunal[vii]. The scheme of the Act is that while one or more Tribunals may be set up as per Section 6(1), such “a” Tribunal or Tribunals, as per Section 22, shall be regulated by its own procedure. Furthermore, the use of the word “may” (i.e., a Tribunal may regulate its own procedure) in Section 22 clearly indicates that whether or not to formulate own rules is a matter for the Tribunal which suggests that it is entirely and exclusively for the Judges of a Tribunal to decide, and when that decision has been taken, the Rules so formulated cannot be imposed upon another Tribunal. This is precisely where ICSF’s concerns lie. The ICSF believes that in the case of there being multiple Tribunals, with each having its own rule-making authority and therefore its own set of Rules of Procedure, chaos and uncertainty will ensue.

The current Rules of Procedure is the result of the Judges’ experience so far gained in course of running the Tribunal since March 2010. In course of formulating these Rules, the judges not only have aimed to complement the Act elaborating and clarifying its provisions, but has also made necessary stipulations in the form of new rules towards ensuring an efficient and fair justice process. Different Rules by different Tribunals are likely to differ from each other even on same points as the Members’ experiences, understandings and even approaches are likely to vary in the new Tribunals. Such differences will invariably lead to inconsistencies in the Rules of Procedure between Tribunals. If rules formulated by different Tribunals will differ from each other, they will also create the scope of varied and inconsistent interpretation of the Rules even on identical procedural issues. The Government must remember that consistency in law and its consistent application is imperative to ensure fair application of law, as well as to ensure confidence of public in the justice process.

Difference of rules is also likely to pose another problem in that the orders so far issued by the current tribunal cannot be used as a guideline or precedent for the other Tribunal(s) since they are likely to be bound by a different set of rules. This will effectively make the procedural findings and guidance stipulated by the current Tribunal inapplicable to the proceedings of other Tribunal(s).

Moreover, existing Rules of Procedure (i.e., of the current Tribunal) cannot be imposed on the new Tribunal, without extensively amending the Act, since the Rule making power is a prerogative of the judges of the Tribunal which is “independent” under Section 6(2A) of the Act.

Even if, hypothetically, the Government perceives that such ‘legal inconsistencies’ (i.e., different Rules by different Tribunals) may be addressed by arranging for multiple Tribunals to consult with each other to arrange for a ‘harmonious’ drafting and interpretation of Rules, such a solution will be unworkable for two reasons. First, requiring the different Tribunals to work towards harmonious drafting and interpretation of Rules, whether formally or informally, is a very ambitious goal, one that is likely to be practically unachievable without thorough amendments in the Act. Second, even if such arrangements are made, that certainly will contravene one of the cardinal provisions of the Act which in its section 6(2A) envisages the Tribunal(s) to operate independently. For the purpose of the Act, such independence of Tribunals will mean being independent even from each other, or being independent from the influence of Rules of each other.

After having functioned for a considerable period, each Tribunal is expected to develop its own legal culture in dealing with cases. Such legal culture may be manifested in the approaches of a Tribunal in dealing with, for example, bail applications, granting of interrogations, allowing motions, allocating time and suspensions etc. In case of many Tribunals, their cultures are bound to vary since the different Tribunals are not subject to any single hierarchy that may engender uniform culture in the approaches of the judges of the different Tribunals.

IV. Re-allocation of cases to the new Tribunal

Another important concern of constituting multiple Tribunals relates to the resulting uncertainty regarding how existing cases before the Tribunal will be re-allocated to the newly constituted Tribunal(s). It goes without saying that one of the principle motivations prompting the Government to constitute another Tribunal is to reduce the workload of the existing Tribunal which has as many as 8 (eight) cases involving leading perpetrators of crimes committed in 1971. Obviously, in case of a second Tribunal, an inevitable eventuality will be transferring or re-allocating some such cases from the existing Tribunal to the new one. Such an approach, however, poses threefold obstacles.

First, it is important to take note of the fact that there is no existing legal provision within the Act providing for any transfer, redistribution, reallocation or reassignment of cases whatsoever from one Tribunal to another. As such, without extensive amendments to the Act any such transfer or reassignment will be impossible.

Second, established practices regarding hierarchy and case management in criminal trial courts also indicate that such a strategy of case re-allocation/re-assignment is likely to be unworkable particularly in a setting of multiple tribunals under the Act. Although the Act does set out the Tribunal’s legal order and dictate ways to enumerate its procedures and also mentions setting up new Tribunals under section 6(1), it simply does not envisage multiple Tribunals actually working side by side. One of the hallmarks in the general practice in Bangladesh judicial system is that criminal cases can not be transferred by trial courts.[viii] This is clear from our Code of Criminal Procedure. Similarly, the International Crimes Tribunal bearing all characteristics of a ‘trial court’ should, on principle, not be empowered to transfer cases.

Third, another significant problem that shall arise as a result of the transfer of existing cases to other Tribunal(s) revolves around the issue of taking cognizance. This may be explained through a simple example – cognizance of offences against accused X by a Tribunal will depend on the satisfaction of that particular Tribunal’s judges as to whether a prima facie case exists against X. Such satisfaction will be reached by the judges only after perusing the formal charge, investigation report, and other evidence. The matter of cognizance, therefore, is always specific to the Tribunal of judges concerned who have actually taken such cognizance. Such cognizance cannot be neither transferred to another Tribunal, nor imposed on the judges of any other Tribunal. In the former case such a bar is grounded in the lack of opportunity of the other Tribunal’s judges which is essential for being convinced of the case against X, whereas in the latter case it is simply a matter of judicial independence, a principle that has been expressly embedded in the Act in its section 6(2A).

With regard to transfer of cases, some policy makers within the government are of the opinion that the Chief Prosecutor should be able to initiate the process of case transfer by filing a ‘withdrawal application’ before the Tribunal. The ICSF believes that this suggestion is legally untenable because it fails to comprehend that a case whose cognizance has been taken by the International Crimes Tribunal (ICT) can either be tried or dismissed via judicial determination, not withdrawn.

From the above discussion, it is apparent that the current Tribunal, should existing norms and rationale be followed, shall be bound to continue adjudicating the eight cases before it as they cannot be transferred or re-allocated to another Tribunal. Under such a circumstance, the available option is to rush the process of dealing with these 8(cases) which in effect could jeopardise the credibility, acceptability, transparency, image of the Tribunal, perception of fairness regarding the justice delivered by the Tribunal. The ICSF believes that this certainly is not an option to pursue and should not even be considered as one. The alternative, ICSF believes, is to expand the existing Tribunal by appointing more Members/Judges, facilitated by minor amendments in the Act, and through that introducing a new system where the existing Tribunal can function as a combination of several Benches all operating under a single (i.e., existing) Tribunal serving as an umbrella. Such a solution, we believe, addresses each of the re-allocation related issues raised in this section.

V.  Concerns regarding Prosecution Team, Chief Prosecutor and Investigation Agency

In cases if there are more Tribunals than one, the number of prosecution teams, or of Chief Prosecutors, will be an issue in case of creating multiple Tribunals. The questions that need to be addressed are – whether, in case of multiple Tribunals, each of the Tribunals will have its separate prosecution team led by its own Chief Prosecutor, or alternatively, as has been reported, whether a single prosecution team will be required to serve the multiple Tribunals under the leadership of one Chief Prosecutor.

It is ICSF’s view that under the present scheme of the Act, each Tribunal is envisaged to have its own prosecution team which means if there are multiple Tribunals, each of them will be served by a separate prosecution team led by its own Chief Prosecutor. Section 7[ix] of The International Crimes (Tribunals) Act 1973 is clear in this regard. According to Section 7(1) of the Act, prosecutors may be appointed by the government to conduct prosecution before “a Tribunal”. Here, the use of the phrase “a Tribunal”, clearly discounts the possibility of one single Prosecution Team (led by its designated Chief Prosecutor) carrying out prosecutorial functions in multiple Tribunals. Similarly, Section 7(2) provides that the Government may designate one of the prosecutors as the Chief Prosecutor. Read together, sections 7(1) and 7(2) confirms the above assessment and conclusion that each individual Tribunal has to have its own set of prosecutors led by a Chief Prosecutor.

In case of one Chief Prosecutor serving multiple Tribunals, which as analysed above not contemplated in the Act, will be problematic also from an operational point of view. Because, under such a scheme, the Chief Prosecutor has to operate simultaneously on potentially different rules of procedure if there are multiple Tribunals, since each Tribunal will be free to formulate its own Rules, which will simply pose an impossible situation to the Chief Prosecutor. Only on this ground alone, a single Chief Prosecutor should not be expected to assist more than one Tribunal.

Similarly, in case of Investigation Agency, the Act contemplates that each Tribunal will have “an Investigation Agency” under Section 8(1).[x] This means that in case of multiple Tribunals, each Tribunal will be served by its own Investigation Agency. Alternatively, if hypothetically presumed that a singular Investigation Agency to serve two or more Tribunals, then that arrangement will certainly cause chaos. Because, under such arrangement, an Investigation Agency will have to simultaneously cater to multiple prosecution teams with potentially different understanding and ideas regarding case strategies and priorities which in itself will be another impossible situation. Uncertainty will follow also in case of submission of Investigation Reports as there will be more than one prosecution team to receive and act on those reports. Finally, the Rules of Procedure requires the prosecution team to submit periodic reports on the progress of ongoing investigations. In cases where investigations are initiated by an investigation agency, as opposed to being initiated at the prosecution’s behest, further uncertainties will follow as the law does not specify which of the prosecution teams is to submit the periodic progress reports and for which investigation team in particular, given that under the current law the Investigation Agency do not possess any standing before the Tribunal to submit such periodic reports by itself.

Another practical problem that is foreseen is that if new prosecutors and investigators are appointed to serve the new Tribunals, such personnel will need to be afforded the opportunity to go through the learning curve in the same manner as the current personnel in the prosecution team and investigation agency, who had been serving the Tribunal for nearly two years. This means, even if a new Tribunal is established to speed up the process with a new prosecution team and investigation agency to operate under such a Tribunal, practically, it would take a considerable period until the newly appointed personnel are sufficiently well-versed and are ready to serve such new Tribunal(s) they are assigned to.

In conclusion, it is ICSF’s opinion that all the above problems, uncertainties and chaos associated with establishing multiple Tribunals can be easily avoided by establishing as many Benches as necessary under one singular Tribunal. Such a Tribunal will be served by one Prosecution Team and one Investigation Agency, but in each case an expanded one with more personnel, as necessary.

VI. Concerns regarding judicial chain of command

Another possible area of concern from the formation of multiple Tribunals is the inevitability of each having its separate Chairman. Section 6(1) of the Act envisages each constituted tribunal to have separate Chairman and section 6(2A) states that these tribunals would be independent in exercising judicial functions. In this respect ICSF thinks that there could be potential conflict in direction and command amongst the Chairmen in leading their respective Tribunals. Conflicts of such nature could not only undermine public confidence in the justice process, they could potentially cause hindrance to the trial process generally. The root of such conflict is the concurrent exercise of similar judicial powers and position in similar institutions. Multiple independent tribunals will also have the authority to frame their own rules of procedure under Section 22 of the Act, as discussed earlier, which is bound to create confusion and chaos due to parallel leadership of the justice process in multiple Tribunals.

VII. Conflict of interpretation, crisis of jurisprudence

Another major concern arising from creation of multiple tribunals is the potential conflict of interpretation of law amongst the different Tribunals. It means that different Tribunals with different set of Rules[xi] and with no single chain of command to bring harmony, the Tribunals will be free to interpret legal texts without having to conform to each other. For example, similar matters are highly likely to be treated different by different tribunal following different approaches and consequently issuing different Orders/decisions. It is ICSF’s concern that such conflicts and chaos arising out of application and interpretation of law will potentially affect the confidence of public in the justice process for want of harmony when similar incidents will potentially be dealt in different ways. Needless to mention, such conflicts are also likely to weaken the ICT by opening its jurisprudence up to more questions and chaos at the subsequent stages of the Tribunal, i.e., during appeal. It must be reiterated here that due to the requirement of “independence” as per Section 6(2A) of the Act, no Tribunal can be compelled to conform to interpretations adopted by other Tribunals.

It needs to be mentioned that potentials for similar interpretive conflicts cannot be discarded in case of Benches too, but since all the Benches (of a single Tribunal) will be governed by a single set of Rules of Procedure framed by the Tribunal itself, such Benches are more likely to operate in interpretive harmony.

VIII. Scope for abuse of process

The creation of multiple Tribunals will open up scope for the abuse of process at the behest of the defense counsel. The newly constituted Tribunal will potentially invite a whole new set of motions, applications, petitions some of which the current Tribunal has already addressed. Due to the fact that the Tribunals will be independent of each other, it will not be possible for the newly constituted Tribunal to ignore the applications before it on the ground that similar applications were heard by the other Tribunal. In essence, the newly constituted International Crimes Tribunal can potentially be flooded with applications concerning the likes of transfer of case motions, recusal of judges motions, jurisdictional challenges as to how one Tribunal adjudicates a particular case while another tribunal does not, petitions highlighting the uneven application of law following the unearthing of inconsistencies in orders concerning similar matters adjudicated by the multiple Tribunals. The fact that each International Crimes Tribunal shall be independent of each other but nonetheless be expected to adjudicate similar facts and issues only exposes the fact that neither of the two Tribunals will hold the authority to decisively conclude any such application placed before it which will be binding and acceptable to both Tribunals. This would automatically create grounds for appeal which must be taken into account at this stage.

IX. Concluding remarks:

After talking to the stakeholders within and outside the government, it is ICSF’s understanding that the Government is reluctant to amend the Act at this stage of the Tribunal. While ICSF is also against unnecessary amendments having been cautious to amendments generally, ICSF does not completely rule out amendments if appropriate circumstances merit them. Under such circumstances, ICSF favours a pragmatic and rational approach. In ICSF’s opinion, institutional expansion of the ICT is one of the circumstances that merit amendments to the Act. Because, from the above analysis, it is very clear that multiple Tribunals, although permitted by the Act, will not be able to function properly without major amendments to the Act. Also, even with such amendments there will still be certain institutional problems. Since no institutional expansion can be achieved without amendments to the Act, it is advisable to amend the Act in order to establish Bench or Benches under the current Tribunal, which can achieve the same objectives of expediting and speeding up the process without having any of the discussed set backs that are associated with multiple Tribunals.

We are also of the view that the Government must not hesitate to amend the Act when it is absolutely necessary to achieve the objectives of the Act. Neither should the Government hesitate simply because how it may (or may not) be perceived by others, or what others might say for not entertaining the amendment-suggestions put forward by certain quarters.

X. ICSF’s proposed amendment to the Act to implement multiple Benches:

Building on the analysis presented so far in this Memo, ICSF proposes the following amendments to be incorporated in the Act in order to establish new Benches under the current Tribunal.

The amended Section 6(1) of the Act to replace the words “not less than two and not more than four other members” with “as many members as the Government may decide. The Chairman shall constitute one or more Benches each composed of three members.”

As such, the amended section will finally read as:

6(1) For the purpose of section 3, the Government may, by notification in the official Gazette, set up one or more Tribunals, each consisting of a Chairman and as many members as the Government may decide. The Chairman may constitute one or more Benches each composed of three members.

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International Crimes Strategy Forum (ICSF) is an independent global network of experts, activists and organizations established with the purpose to understand, research, and support the justice process initiated to end impunity, establish rule of law, and ensure accountability for the international crimes committed in 1971 in Bangladesh. As part of its mandate, ICSF engages and interacts with the ICT and other stakeholders. In addition, ICSF provides research and documentation support to the Tribunal and its various components. All questions and comments related to this document could be directed at ICSF WorkGroup at <icsf.workgroup@gmail.com>.

Footnotes:

[i] For instance, Ghatak Dalal Nirmul Committee, Sector Commanders’ Forum, Dhaka University Teachers’ Association (DUTA).

[ii] Staff Correspondent, “Law minister tell JS Another war crimes tribunal soon” Banglanews24.com < http://www.banglanews24.com/English/detailsnews.php?nssl=c366211d15a83c5e4d72f04ab3b1cf9d&nttl=20 12013131948 >

[iii] The territorial jurisdiction of the Tribunal is whole Bangladesh. Under section 1(2) of the Act when read along with section 2(e), the territory of the Republic as defined under Article 2 of the Constitution of the People’s Republic of Bangladesh is the territory on which the tribunal has jurisdiction.

[iv] The subject-matter jurisdiction of the Tribunal has been provided under section 3 of the Act. According to section 3(1), the tribunal has power to try and punish offenders who has committed crimes under section 3(2) of the Act. The crimes are crimes against humanity, crimes against peace, genocide, war crimes or any other crimes under international law.

[v] The Tribunal’s temporal jurisdiction is provided in section 3(1) of the Act, which states that the tribunal has power to try crimes committed before or after the commencement of the Act, that is, before or after 1973.

[vi] Section 22 of the same Act states, “Subject to the provision of this Act, a Tribunal may regulate its own procedure.”

[vii] The current Tribunal comprised of a Chairman Mr. Justice Nizamul Haq and two other judges Mr. Justice ATM Fazle Kabir and Mr. Justice A K M Zahir Ahmed who had been appointed by the government. The Rules of Procedure they have formulated was first enacted on 15 July 2010 and subsequently were amended twice by the judges on November 2010 and on 28 June 2011.

[viii] On the contrary, Session Judges’ Courts at the district level are empowered to transfer cases.

[ix] Section 7(1) of the Act reads: “The Government may appoint one or more persons to conduct the prosecution before a Tribunal on such terms and conditions as may be determined by the Government; and every such person shall be deemed to be a Prosecutor for the purposes of this Act.

(2) The Government may designate one of such persons as the Chief Prosecutor.”

[x] According to section 8(1): “The Government may establish an Agency for the purposes of the investigation into crimes specified in section 3; and any officer belonging to the Agency shall have the right to assist the Prosecution during the Trial.”

[xi] As explained above.