ICTA 1973 and its
Professor M Rafiqul Islam
(…from previous issue)
Protection of victims and witnesses: Encouraging witnesses to testify in war crimes trials is difficult, as they do not want to risk themselves being endangered. Witnesses at risk may well be the surviving victims of horrendous crimes. They are likely to reveal compelling crime base testimony if they feel valued and secured in the trial process. There must be adequate and readily available protection for witnesses and victims in appropriate cases through camera proceedings, suppressing the identity of a victim or witness to the public, and affording post-testimony sustained security. The Statutes of the ICTY (Art 22), the ICTR (Art 21), and the Agreement on the Cambodian genocide trial (Art 23 expressly oblige the tribunal/court to provide such protection in an inclusive manner. Rules of Procedure and Evidence of ICTY and ICTR have articulated specific protective measures for victims and witnesses (Rules 69 and 75). In Tadic case, the ICTY Trial Chamber II allowed the testimony of three anonymous witnesses, held that “the Prosecution may withhold from the defence and the accused, the names of, and other identifying data concerning witnesses H, K and K”, and reasoned that “[a] fair trial means not only fair treatment to the defendant but also to the prosecution and to the witnesses” (Case No. IT-94-1-T of 10 August 1995, paragraphs 39 & 55). The ICTY and ICTR provide for the restitution of property (Rule 105) and compensation to victims (Rule 106). Victims of rape are unlikely to testify in public for fear of social humiliation and stigma haunting them for the rest of their lives. This is why Rules of Procedure and Evidence of both ICTY and ICTR have adopted a special regime for evidence in sexual assault cases, where no corroboration of the victim's testimony is required, consent is no defence, and prior sexual conduct of the victim is no admissible evidence (Rule 96). Their “Victims and Witnesses Unit” set up pursuant to Rule 34 recommends appropriate protective measures and offers counselling and support for victims and witnesses in rape and sexual assault cases. Neither the 1973 Act, nor the Rules provides an adequate protection regime for victims and witnesses, which must be formulated urgently.
Judgment, immunity and indemnity: The judgment of the Tribunal must pronounce the guilt or innocence of the accused with reasons. If convicted, the Tribunal may award death sentence or any other punishment that it thinks just and proper to the gravity of the crimes.
No provision of the Criminal Procedure Code 1898 and the Evidence Act 1872 shall apply in any proceedings under the 1973 Act. The order, judgement, or sentence of the Tribunal cannot be challenged in any manner whatsoever in or before any court or other authority except by the way of appeal embodied in the1973 Act. No legal proceeding, suit, or prosecution can be brought against the government or any person for anything done in good faith under the 1973 Act, which overrides all other laws in force and prevails over the latter in cases of any inconsistency or repugnancy (Act ss20, 23-26).
The procedure for the pronouncement of judgments under the 1973 Act is consistent with that of the Statutes of ICTY (Art 23) and ICTR (Art 22). Rules of Procedure and Evidence of both ICTY and ICTR (part 2, Arts 8-13) deal with the “primacy of the tribunal”. Article 30 of the ICTY Statute provides immunities to the tribunal and its judges, prosecutors, and Registrar. Article 19 of the Cambodian Agreement may be cited to the same effect. As such, the immunity and indemnity provisions of the 1973 Act do not appear to be unusual in war crimes trials. The provision for capital punishment in the 1973 Act (s20:2) is not necessarily illegal, though it may entail human right implications and obligations.
Conclusion: The 1973 Act and Rules are not perfect but their alleged inadequacies falling short of international standards are not borne out by this comparison. It reveals that the 1973 Act and Rules are by and large consistent with international practice and as fair and reasonable as one can expect in an international crimes trial. Like all other war crimes trials, the Rules under the 1973 Act (s22) are progressively evolving. The criticisms thus appear to be premature and greatly exaggerated. The potential, if not imaginary, violations of rights of the accused cannot override the right of the victims to justice. The Tribunal must stay in the course of rendering this historic justice. (Ended)
The writer is professor of Law, Macquarie University, Sydney, Australia.