Fairness in the War Crimes Trial

DR. RIDWANUL HOQUE stresses on the importance of fairness – for both victims and defendants – in the war crimes trial.

I

Photo: MUNIR UZ ZAMAN/DRIKNEWS

The concept of fair trial has been increasingly attaining a central place in the developing body of international human rights norms. It has also received a special treatment in almost all constitutions across the world. The concept is often interchangeably used with the wider concept of justice that embraces procedural and substantive fairness and legitimacy in criminal proceedings. The demand of justice in criminal processes requires that the criminal trial must be just and fair, because, without the defendant's assent to the process, the legitimacy and moral authority of the conviction become eroded.

Below, we analyse the International Crimes (Tribunals) Act 1973 (ICT Act), as amended in 2009, to see whether and, if at all, to what extent the Act accommodates the principle of fair trial. The trial of war crimes committed during the Liberation War has now begun with the establishment, under the Act, of a special tribunal called the International Crimes Tribunal. The three-member Tribunal has recently framed its Rules of Procedure (with effect from March 25, 2010), providing norms and standards for the Tribunal, Prosecution and the Investigation Agency. These initiatives have opened up both opportunities for, and challenges in attaining fairness in the war crimes trial.

II

A given Constitution may provide for the norm of fair trial through a 'due process model' as opposed to a 'crime control model' of criminal justice system. The due process model is best exemplified by the American practice, and is described as constituting such rights of the accused as the right to counsel, the right to be informed of grounds of arrest, the right to be presumed innocent until proved guilty, the right to be tried in an impartial and independent tribunal, the right of freedom from inhuman and degrading punishment, and the right against self-incrimination which includes the rule of exclusion of evidence improperly obtained. These are indeed several tenets of the right to fair trial. There might be some other fair trial rights like the right to adequate preparation for defence and the right to remain present during the trial.

The Universal Declaration of Human Rights 1948 ensures the right of everyone facing trial to have a fair and public hearing by an independent and impartial tribunal. The International Covenant on Civil and Political Rights 1996 (ICCPR), which Bangladesh acceded to in 2000, contains in its Article 14 a series of fair trial rights including the accused's right to be presumed innocent until proved guilty and the right to be tried 'without undue delay'. While every single regional international human rights instrument provides for the right to fair trial, it is fascinating to refer to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 which "entitles an accused to a fair and public hearing…, to confront witnesses testifying on behalf of the prosecution, to order the appearance of witnesses to testify on his behalf, and to legal assistance". The place of the right to fair trial in the above international instruments, particularly in the ICCPR, shows that the right of an accused to a fair trial is a norm of customary international law, which is also evident in the incorporation of fair trial obligations into the legal regimes of international criminal tribunals including the International Criminal Court (ICC) and the International Criminal Tribunal for the former Yugoslavia (ICTY). For example, the ICTY Statute (Articles 20 and 21) guarantees the accused his right to a fair trial with several component rights and obligates the trial chamber to ensure that the fair trial rights are maintained throughout the proceedings.

Despite the customary law status of he right to fair trial, there are debates regarding whether the fair trial right has turned out to be an inviolable norm (jus cogens). What is important for our purpose is that irrespective of the debate whether the right to fair trial is an inviolable international legal norm, Bangladesh has an obligation under the ICCPR to protect and preserve the accused person's right to fair trial. This is an existing obligation notwithstanding the fact that Bangladesh has not specifically incorporated the ICCPR into its national laws. The obligation to comply with fair trial standards concerns domestic and international courts alike. It is inconceivable that domestic courts and legal systems should have the leverage of relaxing or not following the fair trial standards that have grown at the international level.

The Constitution of Bangladesh has not directly used the phrase 'fair trial', but has incorporated the idea in several of its provisions. The Constitution has specifically guaranteed one's rights to equality before the law, to enjoy the protection of the law and to be treated 'in accordance with law' and the right to life and liberty. Importantly, in Article 35 it has categorically guaranteed certain rights, such as the right to 'a speedy and public trial by an independent and impartial court or tribunal', which are in effect core components of the right to a fair trial. Apart from these constitutional guarantees, the ordinary laws of the country including certain common law principles have supplemented the Constitution on the point of fair trial obligations. For example, a corollary of the constitutional prohibition of torture is that, evidences that are the outcomes of torture inflicted on the accused cannot be used in the trial. The rule of exclusion of unlawfully obtained evidence is also provided in the Evidence Act 1872. On the other hand, a common law principle prescribes that the accused is to be presumed innocent until proven guilty according to law beyond reasonable doubt. An essential part of this doctrine is that the accused does not bear the onus of proving himself innocent, but rather it is the prosecution that has to prove the charge brought against him.

The top courts in Bangladesh are largely vigilant on the need of maintaining fair trial standards. For example, in State v. Zahir (1993) the Appellate Division of the Supreme Court of Bangladesh held that a writ will lie against an unlawfully awarded conviction such as the one arising from a trial vitiated by procedural irregularities causing prejudice to the accused. In this case the defendant was not given a chance to cross-examine previous statements of prosecution witnesses, which the Court considered a "valuable right" of the accused. Also, in the case of Alam Hossain (Md.) v. Bangladesh (2003) involving a more substantial issue, the High Court Division held that a criminal conviction based not on evidence on record is amenable to judicial review, and that 'the principle of law' necessitates the issuance of a constitutional remedy vis-à-vis an unsafe conviction. In the same vein, in BLAST v. Bangladesh (2005), involving prolonged incarceration of the accused persons pending their trials, the Court in effect held for the accused persons' constitutional right to speedy trial.

Even despite constitutionalisation of the fair trial rights, ordinary criminal laws often tend to adhere to the crime control model, where focus is given on punishing offenders or getting convictions. In almost every jurisdiction, there is often a tension between the constitutional principles concerning the criminal law and ordinary criminal laws and practices, i.e., between the goal of 'justice' and the goal of efficient and expedient enforcement of criminal law. Therefore, the challenge for any given legal system, including the War Crimes Trial in Bangladesh, is to ensure justice or protect the fundamental rights of the accused and at the same time to respect the concerned government's prerogative to punish the offenders.

III

Defying objections from the probable suspects, Bangladesh has recently assumed jurisdiction over international crimes committed during 1971. It is one of the imperatives pertaining to international crimes that they must be prosecuted and punished under the international law even if the relevant law fails to criminalise them. Seen in this legal background, the enactment of ICT Act 1973, although in the face of certain ordinary laws that could try some if not all heinous crimes committed during the 1971 liberation war, was a major breakthrough in the world history of prosecuting war crimes.

The international crimes include the crimes of genocide, crimes against humanity, crimes against peace and war crimes. Bangladesh's 1973 Act has incorporated all these facets of international crimes. A perceived challenge for Bangladesh is the trial itself after a long 38 years' time, which may pose obstacles to the gathering of evidence. This does not mean that these challenges are insurmountable. For example, evidential rules work leniently in the trial of international crimes; oral evidence or narrations at a much later time than the times of incidents may well prove sufficient. The 1973 Act has incorporated this phenomenon in section 19 that allows the Tribunal to admit all reports, photographs, films and other materials having probative value as evidence. This is supplemented by rule 44 of the Rules of Procedure that empowers the Tribunal to admit the abovementioned materials including any electronic material as evidence, also giving the Tribunal authority to reject any evidence. The prosecution, therefore, can gather evidence from numerous sources scattered nationally and internationally, and this practice would be in consonant with international legal practices. Moreover, regarding the challenges of time-gap and the collection of evidence, Bangladesh has before it the precedent of the trial of genocide committed in Cambodia by the Khmer Rouge regime in the 1970s.

Needless to say, trial of perpetrators of the 1971 crimes under the Act or the process of providing justice to victims must be in line with international legal standards of fairness, which is one of the key factors in securing legitimacy particularly at the international level. The standards in question concern: (i) jurisdiction, including definition of international crimes; (ii) institutional aspects, such as the impartiality and independence of investigating bodies and tribunals vested with jurisdiction; (iii) adherence to general principles, such as presumption of innocence and the protection against double jeopardy (the right not to be punished for the same offence twice); (iv) rights of the defence, including equality of arms; and (v) victims' and witnesses' full protection.

The 1973 Act has given a clear and progressive definition of genocide, and has also defined crimes against humanity, crimes against peace and war crimes. And, as per s. 3 (1) of the 1973 Act, the Tribunal has the power to try any individual who committed any of the crimes as mentioned in the Act before or after its enactment within the territory of Bangladesh.

It appears that the Act of 1973 has been given retrospectivity, which might be misread by both admirers and sceptics if the facts of the 1971 genocide and the birth of Bangladesh are not appreciated in their contexts. Retrospectivity of criminal law, which has been prohibited in the Constitution, is also a serious concern in the international criminal law jurisprudence, but the case of Bangladesh does not quite fit into that. As mentioned, international crimes are subject to prosecution and punishment irrespective of domestic criminalisation of international (war) crimes. The 1973 Act has simply enacted, in a fashion of recognition, the then existing international rules concerning war crimes and crimes against humanity. The duty of the State to locally prosecute international crimes pre-dates the 1973 Act. Moreover, the prosecution of crimes against humanity is a widely acknowledged exception to the principle of non-retrospectivity. More importantly, the Constitution in Article 47A made the rule inapplicable against retrospective criminal trials to cases under the Act of 1973.

On the institutional ground, the Act of 1973 also passes the test of international standards. Overarchingly, s. 6 (2A), inserted in 2009, provides that "the tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial". Judicial independence is one of the fundamental essentials of the right to fair trial. Given this clear statutory duty of impartiality imposed on the tribunals and the charge upon them to maintain fairness throughout the process, the concerns about the fairness and impartiality in the trial of war crimes seem to be misplaced. It should be noted that before inserting the duty of maintaining fairness in the trial, the government pledged the independence of war crimes tribunals at the very outset of its legal efforts in 1973. This commitment is still valid, and the government has recently renewed the pledge, and there is no indication that it would do otherwise.

A pertinent question is whether the Bangladeshi Act adheres to general principles of criminal justice such as presumption of innocence and the rule against double jeopardy. There is at present no provision in the 1973 Act that markedly curtails the rights of the defendants. For example, there are provisions for independent prosecution and investigative agencies (sections 7-8), which will exclusively function for the war crimes trials. Moreover, the defendants are given the right to appeal to the Supreme Court within 60 days of the convictions, although they are barred from challenging the legality of proceedings.

Article 47A of the Constitution provided that the fundamental rights guaranteed under Articles 31, 35 and 44 shall not apply to any person to whom a law specified in clause (3) of Article 47 applies, i.e., a person to whom International Crimes (Tribunals) Act 1973 applies. These are, no doubt, certain exceptions to the doctrine of fair processes. Article 47A (2) categorically provided that such a person, i.e., a person amenable to the ICT Act 1973, shall not have the right to move to the Supreme Court for any of the remedies under this Constitution.

This limitation on the right to invoke constitutional jurisdiction has largely been compensated in the 1973 Act by providing the accused with a right to appeal. Further, imposition of a bar on the perpetrators' right to constitutionally challenge their trials for serious crimes is in no way illegitimate as far as the law provides for fair play and procedural justice in the trial process. That said, it should also be noted that despite the abovementioned limitation a writ of certiorari is likely to issue from the High Court Division when the process is blatantly illegal or is taken in flagrant breach of the ICTA itself.

It seems that the Act does not specifically guarantee a right to speedy trial. By contrast, the constitutional right to speedy trial has been made inapplicable for those charged under the ICTA 1973. Nonetheless, the Act of 1973 has by implications provided for speedy trial. For example, section 22 of the 1973 Act grants powers to the tribunal a power to regulate its own procedure. Moreover, technical rules of evidence and trial procedure are not applicable to a trial before such tribunals.

Further, the accused has been guaranteed the right not to take oaths while presenting evidence and the right to know the charge levelled against him. As section 17 provides, the accused shall have the right to give any explanation of charge and conduct his defence. The Act also provides that the trials should be open and public trials, unless the judge on good reasoning orders otherwise. Public and open trial is one of the fundamental elements of the fair trial rights. The exception to public trial as provided in the 1973 Act, for which a reasoned judicial decision is a must, is also internationally acceptable. Also, restrictions on the entry of the general public to the Tribunal during the proceeding are made on the ground of security, which is obvious.

There are also rights for the defendant to inspect documents and to get the reasons behind charging him in such well advance that he can prepare for the defence. More importantly, the Tribunal must record its reasons on the findings on guilt of the accused.

In addition to the fair trial standards provided for in the Act, the Rules of Procedure of the Tribunal have prescribed a number of 'fair trial' procedures and principles. The Rules specifically mention the 'fair trial' and 'justice' in rule 41, while making provision for the assistance from the amici curie. The 'Rules' also empowers the Tribunal to discharge an accused when it finds no adequate reason to presume that the accused committed the offence charged (rule 37), virtually prohibits the prosecution on frivolous charges and arrest of any person except through the tribunal's processes (rule 9), provides for the appointment of counsels at the state's expense when the accused goes un-represented by a counsel (rule 43), places the burden of proof on the prosecution (rules 50-54), and provides for the adequate proof of any evidence produced by the Prosecution or the Defence (rule 58). There are some other provisions in the 'Rules' that provide for the transparency and maintenance of records, information, and evidence, ensuring in many ways the accused's right to information.

IV

It thus appears that the ICT Act has met the challenges of fair trial rights. The Act has adequately tied up the due process rights for the accused. There is no denying that in order to be credible and legitimate the trial of war crimes in Bangladesh needs to be compatible with the international standards. Bangladesh has an obligation to that effect both as a member of the world community and as a party to the Rome Statute and the ICCPR. While as a member of the United Nations it has to go by the human rights obligations under the UN Charter, its ratification of the Rome Statute and the ICCPR creates an obligation to adapt its domestic laws to the fair trial requirements of these instruments.

A principal challenge for the war crimes trial is, however, to strike a right balance between protecting fair trial rights of those accused and the enactment of justice for the victims and martyrs of the war of independence. If there is any deficiency in the legal scheme of the 1973 Act in ensuring fairness and justice that can be compensated by the tribunals by relying on other existing laws and the constitutional principle of justice and fairness as well as on prosecutorial and investigative standards of domestic implication set by other international and national tribunals that have tried war crimes and offences against humanity. For example, as seen above, the recently framed 'Rules' of the Tribunal have fed the fair trial obligations prescribed in the Act.

On a final note, it can be said that the ICT Act is predominantly a local law and the trials are also domestic. Thus, while there are requirement and benefits in complying with international standards of fairness, it should be appreciated that the concept of fairness like any other normative concept is not absolute. The degree of fairness enshrined in the Act is to be assessed with reference to the local needs such as, for example, the long denial of justice to the victims of the 1971 war and the nation as a whole.

Dr. Ridwanul Hoque is Associate Professor in the Department of Law at the University of Dhaka. This is a revised and updated version of one of his earlier academic writings.