Experience in international crimes trials since the Nuremberg reveals a consistent trend of non-technical and expeditious trials. The ICT Act 1973 provides for non-technical and speedy trials and sets a time-driven disposal of appeals. Despite these provisions for expeditious trials and appeals, procrastination for variety of reasons in ICT trials and appeals is evident, which is a legitimate concern in the interest of justice. If any of the accused dies before the ICT verdict and/or convicted dies before appeal decision, all charges against him/her will have to be dropped by death, he/she will remain entitle to the presumption of innocence and continue to enjoy impunity. Such judicial procrastination in effect denies the victims of their right to justice. This is not a hypothetical but real possibility, which if eventuates, will entrench, rather than end, the impunity of perpetrators.
Every criminal trial entails two distinct aspects of justice: procedural justice to ensure fair trials and substantive justice to redress aggrieved victims. The former relates to the conduct of the pre-trial and trial proceedings. The latter relates to the judicial exposition of the crime charged and its commission, perpetrators, and consequences. Conventional principles governing procedural justice have been developed to administer criminal proceedings in national criminal trials. These proceedings are often circumscribed by the technicalities of procedural rules for the admissibility of evidence, the applicable law, and any extra-legal consideration – the usual causes of uncertainty and procrastination in many trials. These principles are not necessarily applicable in international crimes trials for compelling reasons.
There are differences in the definition and constituent elements of ordinary crimes (murder) and certain extraordinary crimes (genocide). The unavailability of typical admissible evidence, such as enough surviving witnesses and physical evidence warrants the differential treatment. The available evidence in international crimes trials are usually newspapers, special reports, photographs and footages, documentaries, tape recordings, hearsay, achieve collections, which are not primarily admissible in national criminal courts. Both evidentiary materials and probative value differ between national and international crimes trials. The approach to the admissibility of evidence in international crimes trials is generally flexible in admitting probative evidence irrespective of its form. Professional judges have the capacity to administer the test of admissible evidence to ensure procedural fairness.
Statutes and charters of special international crimes tribunals/courts contain provisions for expeditious trials through less-technical rules and non-complex procedure for the admission of evidence to avoid unreasonable delay and irrelevant issues. ICTY Rules 92bis, 92ter, and 92quater (adopted 13 December 2000 and 13 September 2006) treat the written statement or transcript of a previous testimony of a witness as admissible evidence in various circumstances without requiring the witness to attend the trial to present evidence orally. Rules of Procedure and Evidence of the ICTY and ICTR also allow, as admissible evidence, statements of a ‘consistent pattern of conduct’ (Rule 93), judicial notice of commonly known and previously adjudicated facts without proof (Rule 94), and any relevant documentary evidence, which is deemed to have probative value (Rule 89:C).
Interlocutory appeals are the common causes of unreasonable delay, exemplified by Milosevic trial before the ICTY and Case No 2 before the Cambodian Extraordinary Chamber in which the accused died in custody and on trials that continued for years due to successive interlocutory appeals. These trials reveal that nearly all interim rulings on procedures and evidence are susceptible to interlocutory appeals and trials were withheld pending the appeal outcome. Encountering this problem, the ICTY amended its Rule 72, restricting the scope of interlocutory appeals with strict conditions. The Trial Chamber is mandated to grant the certification of compliance with these conditions. The ICT Act 1973 contains no interlocutory appeal provision to serve the cause of speedy trial. The issue of procedural fairness is covered by its open-ended appeal provision. Any procedural irregularities can be raised in appeals before the Appellate Division of the Supreme Court.
It is a common prosecution tendency to prosecute all perpetrators for all crimes committed. But procuring and filing compelling evidence against each perpetrator for each of their crimes is often uphill daunting and time-consuming tasks. The defence also often adopts a dilatory strategy through extravagant claims, exemplified by Radovan Karadzic (Bosnian wartime Serb president) plea of additional 300 hours and testify 300 witnesses to prove his innocence. The ICTY has overcome this cause of unreasonable delay through multiple amendments to its Rule 73 on judicial powers. It was amended in July 1998 to increase the judicial powers to control pre-trial and trial proceedings by calling upon the parties to shorten the length of witness examination, determining the number of witnesses, and setting the time available for the presentation of evidence with a view to expedite the trial (Rule 73bis B,C). In July 2003, the scope of Rule 73bis was extended further, allowing the Trial Chambers to fix the number of crime sites and incidents to be brought in the proceedings (Rule 73bis D).
Unreasonable delay contributed to the death of Slobodan Milosevic on 11 March 2006 after over four years of trials. His death raised worldwide concern about the propriety of his trials, which could have been done differently and expeditiously in the interest of justice to the victims. In response, the ICTY amendment to Rule 73bis in May 2006 again empowering the Trial Chambers to reduce the number of counts charged by directing the prosecution to be selective in including the counts in the indictment (IT/32/Rev.41, 28 February 2008). Recently, the snail pace progress in the Cambodian genocide trial has allegedly resulted in the death of Ieng Sary on 14 March 2013, the Khmer Rouge foreign minister and one of the 3 accused in Case No 002. This raised considerable public antipathy towards the slow progress of the trial, threatening to deny justice to the victims of Khmer Rouge. Since the charges against these accused terminated by their death, they remain legally entitled to the presumption of innocence, their accountability for heinous crimes continue to enjoy impunity and their victims continue to be deprived of their right to justice. The delivery of substantive justice to the victims was made subservient to so-called procedural justice to the perpetrators.
The 1973 Act requires to ‘confine the trial to an expeditious hearing of the issues raised by the charges; take measures to prevent any action which may cause unreasonable delay and rule out irrelevant issues and statements’ (s11:3). It also does not permit adjournment for any reason other than in the interest of justice (s13) and provides for ‘expeditious and non-technical’ rules and procedure for the admission of evidence (s19). The appeal process is also subject to set-time in the interest of expeditious outcomes. Both processes must address the recurring sources of unreasonable delay. The prosecution is better-off by being selective in charge framing based on only compelling evidence that minimise time and resources but maximise potential for conviction. Failures of the prosecution (Sayeedi trials) and defence (Azam and SQ Chowdhury trials) to present their listed witnesses should not be rewarded.
Extraordinary crimes warrant exceptional trials, which cannot continue endlessly. Procedural justice is an important means of ensuring fair trials, but not the end in itself. It is neither self-defining, nor have any intrinsic value independent of the trial to which it relates. Lessons from contemporary war crimes trials suggest that procedural justice may be tailored to suit the specific circumstances of a given trial to render substantive justice. Being a means procedural justice, however passionately stressed and immutably construed from human rights perspective, must be understood to facilitate, not to evade, substantive justice. When procedural justice is more obstructive than complementary to substantive justice or does not address, but contributes to, the destabilisation of expeditious trials, it needs to be tailored to advance substantive justice and speedy trials, which the ICTY precisely did by repeatedly amending its Rule 73. Procedural justice should not be stretched too high or far to make it undeliverable and frustrate the very end – the fundamental obligation to end the impunity.
Fixed time-driven judicial settlement is fast becoming a preferred condition on which the efficiency of judicial authority has come to be judged (WTO dispute settlement). The expeditious hearing provisions in the 1973 Act are in line with this trend, which must be practiced as necessary steps to overcome unwieldy complications and as functional tools for the judges to prevent unnecessary delays. It is imperative that the judges pursue these steps and tools proactively in the Bangladesh trials held after prolonged impunity and with very old-age accused and living witnesses. The nature and egregiousness of the 1971 war crimes and compelling values inherent in their absolute prohibition dictate that procedural justice must not outweigh the delivery of substantive justice. The judges must ensure not only that no innocent is punished but also no guilty is escaped through the niceties of procedural justice. Given a traumatised society’s high expectations of and demand for accountability, it is in the interest of justice that the judges proceed expeditiously to hold perpetrators accountable for their outrage on humanity in 1971.
The author is a Professor of Law at Macquarie University, Sydney, Australia.