Afsan Chowdhury, 30 May 2011
Even before the trial has begun, the war crimes tribunal is threatening to become controversial. Partly because many are reading politics in the trial process while there are international concerns that the legal regime governing the trial is inadequate. Some are worried that the prosecutors may not have gotten their acts together as far as admissible evidence collection and appropriate prosecution strategy goes. More anxiety may follow.
* * *
Let us face it; everyone wants revenge and not a trial. Most see the trial as a legal formality to be completed to punish the accused. But that is not the business of the state however intense the social feeling is. While everyone knows about the war crimes of 1971 and the war crimes tribunal has come into existence to try those who committed crimes against the people, they don’t add up to conviction which is a legal matter, not a social or emotional point. While everyone is anxious to seek punishment of war criminals and not necessarily a fair trial, the whole business of the trial to be run by the state is exactly that.
* * *
Due to repeated failure of various regimes to try war criminals, an enormous reservoir of resentment has been created in public minds. But the trial is not a tool for revenge and that is why the WCT has become a complex matter. It is responsible for providing even handed justice for all including the criminals and no matter how much people want revenge, the ultimate goal of this body will be to deliver justice to all, the victims and the accused.
Using the court to seek revenge will defeat the purpose of the process because revenge is not built around legal and logical action while a court is. And a bad trial will be a very bad revenge.
* * *
Questions whether a fair trial is going to be held has already been raised and while internally this is not much of an issue, it is in international quarters who matter on such matters. Two agencies, Human Rights Watch (HRW), a global HR organisation and the US government have raised concerns about various procedural and legal matters relating to the trial process while supporting the objective of the government to hold the trial.
HRW has said that while Bangladesh has already carried out a number of amendments to the 1973 Act which it welcomes, it seeks more. Some of the key ones are:
- Amending the definition of crimes to articulate more clearly the relevant definitions of war crimes, crimes against humanity, and genocide as they existed under domestic or international law at the time of the offence;
- Amending the act to allow challenges to the constitution of the tribunal and the appointment of its members;
- Amending the act and rules to ensure that the due process — rights of the accused are consistent with Bangladesh’s international legal obligations;
- Repealing Article 47(A) of the Bangladesh Constitution to allow the accused full protection of their constitutional rights, including the right to enforce their fundamental rights under Article 44, which protects fundamental rights;
* * *
Bangladeshis, who are affiliated with the process, whether from the government or civil society spaces will no doubt have their say on the issues raised by the US government and HRW but that they have been raised means such issues will become the test of a generally acceptable trial. The US government’s representative Stephen Rapp has stated on matters he found lacking relating to international standards and international justice process regimes concerning such trial.
International Crime Strategy Forum (ICSF) has counter argued on such matters in a recent bdnews24.com opinion post (http://opinion.bdnews24.com/2011/05/22/stephen-rapp-of-misconceptions-unrealistic-expectations-and-double-standards/). A point stressed by the ICSF is that the trial is a purely domestic matter and its provisions are not matters for scrutiny by the international legal regime.
It is probably so and the debate and discussion on legal principles and jurisdictions will go on but to claim that it is ‘purely domestic matter’ is unrealistic even if the trial is being held in a national court. No war crimes tribunal is ever domestic in today’s world and the fact that the HRW and Representative Rapp are already involved in discussing the trial means it is already been placed under global scrutiny. It is de jure domestic but de facto international. To preserve the effectiveness of the trial, one must take these facts into consideration.
* * *
One reason why there is anxiety over whether Bangladesh has the ability to conduct a fair trial particularly on such a complex issue is because of our overall weak reputation as far as having a satisfactory legal regime goes. Our judiciary is not considered robustly independent –rightly or otherwise — and we have a serious extra-judicial environment impinging on the rule of law.
The overall impression about the judiciary in general is also not favourable whereby the subordinate judiciary is considered ‘corrupt’ and the higher judiciary may have been willing to consider official opinion when passing certain cases. The recent Grameen Bank episode has not enhanced the reputation of the courts particularly in the international sector where it was closely followed. These three factors; a tainted lower judiciary; a somewhat sympathetic (to the government) higher judiciary and the tolerance of extra-judicial agencies over decades don’t make Bangladesh look like a very legal society. It makes our ‘revenge seeking’ not so halal either.
* * *
Which bring us to the issue of organising ‘revenge’ on behalf of the victims of 1971 through this trial sound contradictory. Many are concerned that this government which botched the case of trying to deprive Golam Azam of citizenship may not be better prepared this time either.
According to reports, three UK lawyers Steven Kay, Toby Cadman and John Cammegh have been hired to help the defence.
Steven defended former Yugoslav president Slobodan Milosevic facing charges of genocide, crimes against humanity and war crimes in the International Criminal Court in the Hague of Netherlands.
Toby was a prosecution lawyer in the Bosnia Tribunal for war crimes and John was defence counsel in the Special Court of Sierra Leone for international crimes including war crimes committed during the civil war (1991-2001) of the country. (International Crimes Strategy Forum (ICSF) website)
These are international veterans with a long track record of successfully defending people accused of war crimes.
* * *
But does the prosecution team have it to carry out the task?
It appears that none of the prosecuting lawyers have experience of any kind to international criminal law let alone practice. Few are experienced defence lawyers. Bangladesh lawyers and war crimes prosecution activists are not happy with the situation.
“Dr. Shahdin Malik, dean of Brac University’s law school, said, ‘We don’t have any in-house expertise, no one has dealt with these kinds of cases in Bangladesh …There is a dearth of knowledge on the prosecution side (Call for govt to instruct foreign lawyers for ICT prosecution, New Age, February 22).’
‘Sultana Kamal, the chief executive of the human rights organisation Ain o Salish Kendra, also stated, ‘We all know these people [local prosecutors] and so how can anyone say they are fully competent? (Call for govt to instruct foreign lawyers for ICT prosecution, New Age, February 22)’
‘Shahriyar Kabir, the executive president of Ekatturer Ghatak Dalal Nirmul Committee and one of the country’s key war crimes campaigners, said, ‘I don’t have confidence in the current lawyers (Call for govt to instruct foreign lawyers for ICT prosecution, New Age, February 22).’ As Shahdin Malik said, ‘The government should look for the best international criminal law prosecutors and instruct them.’ ( New Age report Feb 2011)
* * *
While Bangladesh is not considering hiring international lawyers, it doesn’t seem to have the specific competence to either investigate or prosecute. Can one take this risk given the importance of this case? In 2007, when Sheikh Hasina was prosecuted by the Fakhruddin government she had two international lawyers advising her defence team. More importantly, Sheikh Mujib’s defence team in 1968 when he was being prosecuted in the Agartala Conspiracy case, his team was supported by Thomas William, a British lawyer who filed a writ petition in Dhaka High Court challenging the legality of the formation of the tribunal.
Not to get the best lawyers for the prosecution when historically it has always been done puts the case at risk from floundering into a mess. What will the people responsible for this trial say if the case for the prosecution fails because nobody has adequate experience in this sort of law?
* * *
It is not a legal case at all, it is a political case of significance, nationally and internationally. If the WCT fails to deliver what people want or the global legal world expects, the only thing that may be delivered is a mess which can damage the status, reputation and aspiration of the people all in one go making everyone concerned unhappy and angry.
Afsan Chowdhury was part of the Muktijuddher Dolilpatra Project led by Hasan Hafizur Rahman from 1978 to 1986 which produced 15 volumes of documents on the history of 1971. For the BBC, he produced eight radio series and several chat shows on the issue on 1971. He has produced a video documentary on women and 1971 titled “Tahader Juddhyo”. Afsan has edited and co-authored a four-volume history of 1971, “Bangladesh 1971”.
He has worked in several parts of the world as a development and Human Rights specialist for the UN and other agencies. Afsan was the Oak Fellow on International Human Rights of the Colby College in the USA in 2008.
Talk to Toby Cadman who is ideally placed to assist and mediate any extradition dispute
International Criminal Law
Toby Cadman has a wealth of International Criminal Law experiences.
Public International Law
Public International Law Toby Cadman can assist you in all aspects of Public International Law.
Tony Cadman Blog
Afsan Chowdhury, 30 May 2011