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International Crimes and
The Tribunal in Bangladesh

RICHARD ROGERS suggests ways to approach the war crimes trial towards achieving closure for the nation.

People's desire to know and understand the difficult and painful episodes of their own history is a very welcome feature in the contemporary world. Few communities around the globe can claim to have a history devoid of conflict or tragedy and dealing with the post-war situation has always been a challenge. Embarrassed or afraid of the truths that may rise to the surface, some call to forgive and forget the past, to 'turn a page', to leave the skeletons in the closet. Yet, time and again, this philosophy of repression has left too many questions unanswered, too much misunderstood, and has led history to repeat itself. In the former Yugoslavia, grievances hundreds of years old, resurfaced in the 1990s to result in one of the greatest tragedies in modern European history. In Rwanda, the echoes of colonial rule fuelled a divide that ended in a slaughter of almost a million people. Two decades after the First World War left Europe in ruins, Adolf Hitler managed to garner support for a second and even more devastating war. In 1971, Bangladesh was scarred by a terrible conflict that has not been put to rest. The way in which the people of Bangladesh approach this past will undoubtedly shape its future.

Victims' long wait for justice
Post conflict accountability can be dealt with in different ways. At the end of World War II, the three leaders of the Allied Powers met to discuss this very question. Winston Churchill advocated for the summary execution of all captured, high-ranking Nazi officers. Stalin preferred to hold a show trial, where the defendants would be presumed guilty and the forum would be used to catalogue their crimes and determine their punishment. Roosevelt was also in favour of a trial, but advocated for a more balanced procedure. The Nuremberg International Military Tribunal was born out of these negotiations, setting down the foundations for international criminal justice. Over the last six decades, criminal trials have gradually become the recognised means of assessing responsibility, and shedding light on conflicts. From Germany to Japan, Yugoslavia to Rwanda, or East Timor to Sierra Leone, victims of war and tyranny have come to associate justice with the path to truth, reconciliation and emancipation. Yet in most of these cases, the wait for justice has been long and hard.

One can cite the case of Cambodia where in the 1970s, a Maoist regime plunged the country into a four-year nightmare of forced collectivisation, systematic torture and the death of around 1.7 million people. Although the Khmer Rouge was toppled in January 1979, it was not until 2007 that a judicial body began to look into these atrocities. This judicial body is known as the Extraordinary Chambers in the Courts of Cambodia, or the 'Khmer Rouge Tribunal'.

One victim and subsequent witness at this Tribunal's first trial typifies the long and difficult wait for justice experienced by the victims of the Khmer Rouge. His name was Vann Nath.

After spending two and half years in a forced-labour camp, Vann Nath was arrested in December 1977. Following a series of interrogations and torture, he was sent to the notorious S21 prison. For a month he lay shackled by his ankles, sharing a filthy cell with up to 65 other detainees, in silence and in fear. Prisoners were only allowed six teaspoons of gruel a day, and if insects fell from the ceiling they fought each other to eat them. Prisoners were not allowed to talk, move, or sit up without permission. Vann Nath testified at trial that “people were dying one after another” and he felt like “death was imminent”.

One day during his capture, Vann Nath was asked to paint a picture. His jailer approved of his artistic talent and Vann Nath spent the next 11 months painting portraits of a man he later learned was Pol Pot, the leader of the Khmer Rouge. This ultimately saved his life as he was spared death in order to paint. Although his living conditions improved, the torment continued, as he heard the cries of tortured inmates and saw thousands leave to the killing fields. When the Vietnamese invaded Cambodia in January 1979, Vann Nath fled S21 to freedom, but in the knowledge that he was one of only a handful of prisoners to survive -- over 12,000 fellow inmates had perished.

Vann Nath's memories continued to haunt him long after the Khmer Rouge was defeated. As a kind of therapy, he began painting the scenes of S21 as he remembered it, and these shocking paintings now cover the walls of the Genocide Museum that occupies the former grounds of S21.

Finally, after 30 years of nightmares and unanswered questions, Vann Nath was given the opportunity to testify as a witness in the case against the former Chief of S21, a man known as Duch. When asked what he hoped to gain from the trial, Van Nath responded: “I never imagined I would be able to sit in this courtroom today…This is my privilege. This is my honour. I do not want anything more than that.” Duch was sentenced by the Khmer Rouge Tribunal to 35 years in prison with 19 years left to serve after deductions. Although many commentators criticised what they saw as a lenient sentence, Vann Nath said very sincerely that he accepted this decision by the Tribunal.

Vann Nath's story illustrates the importance of justice to the victims of atrocities. Justice, in Vann Nath's sense was seeing his own jailer confronted with the horrible crimes he had committed, and the knowledge that there was, finally, no impunity for his tormentor. His sense of justice mirrors the sentiments felt by victims all over the world.

Justice delayed
Sadly, the delay in bringing justice to Vann Nath proved to be too long. The verdict and sentence were appealed, but tragically, Vann Nath died a few months before the final appeal judgement was rendered, never to hear that Duch's term of imprisonment was increased from 19 years to life.

The road to effective justice is never an easy one, and the victims of atrocities are all too often sacrificed for political expediency. A genuine justice process cannot be powered solely by the painful memories and hopes of the victims. It requires strong public and political will, as well as substantial resources. It also requires a secure context, within which the lawyers and witnesses can feel at ease to make decisions and statements dictated by their conscience, and not by fear or external influence. InCambodia, such a state of security was not possible until the effective end of the civil war in 1998. Yet, even in a relatively safe environment and with the benefit of political will to hold trials, it took another nine years of difficult negotiations between the United Nations and the Government of Cambodia, to finalise the terms of international support.

In many ways the difficulties faced in Cambodia mirror hurdles to bring justice to the world over and nowhere more so than in Bangladesh. For 40 years, the appeals for a genuine judicial process fell victim to the constant shift of political power, from those wishing to pursue justice to those for whom the pursuit of justice collided with their personal or power interests.

Justice in Bangladesh was delayed for far too long, but now that the conditions are finally ripe, it must be pursued robustly.

Keeping memory alive
Complex criminal cases examining civil and military command structures require large amounts of evidence to establish the link between leaders and foot soldiers. In the context of trials, which, as in Bangladesh and Cambodia, take place decades after the fact, retrieving, safeguarding and cataloguing such evidence requires a tremendous effort. International trials in such circumstances would not be possible without organisations such as the Liberation War Museum, keeping alive the memories of past wrongdoings and acting as an archive for evidence. There are a number of examples of these types of organisations around the world and I would like to outline the work of one or two others.

After the breakup of the Soviet Union, a volunteer organisation called 'Memorial' was founded in Russia, subsequently spreading to other post- Soviet States. Its goal is to promote the revelation of truth about past events and to safeguard the memories of the victims of political repression by totalitarian regimes. Originally conceived to document only Stalin-era atrocities, the organisation has developed into an important archive of post-Soviet human rights abuses, and an engine for the formation of public consciousness based on the values of democracy and law. Parties bringing cases against post-Soviet States to the European Court of Human Rights have relied heavily on the wealth of information in its database.

Tthomas Northcut/ Getty

Another example is DCCAM. The Documentation Centre of Cambodia, began as a field office of Yale University's Cambodian Genocide Programme, funded by the US State Department. In 1997, it became an independent NGO, whose goal is to research, document and share the history of the Khmer Rouge period. To date, DCCAM has provided over half a million pages of documents and photographs to the Khmer Rouge Tribunal to be used as evidence in the ongoing case against the remaining leaders of the Khmer Rouge regime.

In Bangladesh, similar example has been set by the Liberation War Museum which is not just a building with walls, a roof and a ticket booth. The Museum's mission, just like the mission of Memorial and DCCAM, is to keep alive the memories of the painful past for future generations, and to teach them the importance of tolerance, mutual respect, democracy and the rule of law. Its efforts have contributed enormously to making the International Crimes Tribunal a reality. Long after the ICT completes its mission, the Liberation War Museum will undoubtedly continue to play a vital role in documenting and disseminating the court's findings, evidence and testimony, thus turning legal proceedings into a record of history.

The importance of outreach and legacy
To help transfer the important lessons about history and justice to the general public, Legacy and Outreach programmes have been implemented by war crimes courts or by NGOs. Important legacy initiatives may include public forums to discuss the trials, the publication of summaries of proceedings, public screening of important hearings and court rulings, workshops on crucial, legal and factual issues, as well as exhibitions and archives.

These sorts of initiatives are important because whilst the moral principles underpinning the trials may resonate with people from all walks of life, the slow and technical legal process can easily alienate much of the public, with only arrests and verdicts generating widespread interest. This in turn dilutes the peripheral, long-term benefits of the criminal proceedings. Outreach programmes, which can explain the legal process in a language understood by all, can help give the public a real sense of ownership.

Khmer Rouge Tribunal has public forums around Cambodia to discuss on-going proceedings. Students, legal professionals and poor farmers alike would be given an opportunity to listen and speak to representatives from all the various organs of the Tribunal. The representatives of the Tribunal speak to victims and perpetrators, those who believed in the benefits of the Tribunal and those who criticised it.

Although the tangible benefits are hard to measure, the feedback from the communities was extremely positive and the forums were always well attended.

In addition to these public forums, Cambodian NGOs, such as DCCAM, would organise transport, food and guided tours for communities across the country that wanted to visit the court and watch the on-going proceedings from the public gallery. These types of initiatives could also enhance the impact and the legacy of the ICT in Bangladesh. The Dhaka Tribunal is a national court and therefore accessible to many people, and thus, is an important benefit from a legacy perspective. Full advantage should be taken of this proximity.

State responsibility
Wars and mass atrocities are rarely free from the participation of State entities -- the army, the police, the State security services. Many Bengali victims may rightfully feel that a full inquiry into the crimes of 1971 is impossible without an investigation into the actions of the Pakistani military and State.

The State of Pakistan has never accepted responsibility for its actions or fostered local accountability mechanisms. This is despite findings by a Pakistani Judicial Commission that the Pakistani army may have committed atrocities and should face a Court Martial. Although this lack of acceptance and action by Pakistan is regrettable, it is not unusual. The former Soviet Union has never taken responsibility for its Cold War proxy conflicts that led to countless deaths, political upheaval and economic collapse in nations across the globe. The United States has never acknowledged its responsibility for the consequences of its carpet bombing operations in neutral Laos and Cambodia during the Vietnam War. Nor has China, for the support it provided to the Khmer Rouge. And Turkey still refuses to accept its role in the Armenian Genocide.

The goal of international criminal law is to determine criminal responsibility of individuals, not the responsibility of a State. Yet, the potential for international criminal trials to highlight the role of third States and to discuss State complicity, should not be ignored. The temporal jurisdiction of the Khmer Rouge Tribunal was designed to avoid the period of US bombing of Cambodia, which took place prior to the Khmer Rouge victory. Nevertheless, the lawyers have made numerous attempts to expose the influence of the United States and China on the events being examined. Likewise, Pakistani officials may never be brought before the International Crimes Tribunal in Dhaka to respond to allegations of mass atrocities, but that does not mean that these important facets of history cannot be aired during the proceedings.

It took the French government 50 years to acknowledge and apologise for its role in the deportation of 80,000 French Jews to Nazi concentration camps during the Second World War. In 2008, the Australian government apologised for policies that “inflicted profound grief, suffering and loss” to its Aboriginal population decades earlier. The decision to make both of these apologies was influenced by widely publicised litigation. In a similar way, the International Crimes Tribunal may also play a role in a future acknowledgment of responsibility by the State of Pakistan.

Addressing criticisms
To recap, I have discussed a number of ways in which the ICT in cooperation with the civil society can be of value to the people of Bangladesh. Beyond the fact of bringing a handful of alleged perpetrators to justice, the process has the potential to generate a comprehensive debate on crucial historical questions. It can also elucidate and disseminate a more objective record of history, strengthen national judicial capacity and the rule of law, as well as the peoples' trust in the legal process. Most importantly, it will give victims of 1971 atrocities a belated, but crucial chance to witness and participate in real justice, hopefully laying to rest decades of unanswered questions and painful memories.

However, all of these important benefits may be overshadowed, or even undone, if the reputation of the ICT is marred by criticisms levied against it, both nationally and internationally. When looking at the criticisms voiced so far, it is clear that many have been based more on supposition than substance; many have simply been attempts to obstruct and undermine the judicial process for political ends. These types of criticisms should be ignored or dismissed.

Thankfully, other observers and monitors have provided far more constructive commentary or even recommendations aimed at improving the process. The value of some of these suggestions has been recognised by the Bangladeshi authorities who have relied on them to introduce procedural rules. This process of developing rules of procedure and evidence is quite normal in such courts and should be encouraged.

Paula Bronstein/ Getty

When we look around the globe we find that none of the other war crimes courts were blessed with perfect rules from their inception. The fact that the procedural rules of the Yugoslav Tribunal have been revised 46 times over the last 18 years is a testament to its early imperfections. So, just as the other courts have adapted over the years, so too can the ICT legitimately update its procedures to meet the needs of justice. The Tribunal deserves to be given the chance to do so.

In any event, it is important that Bangladeshi and foreign observers see the ICT in context and put their concerns about the rules or the practice into proper perspective. Firstly, it is important to appreciate the huge difference in resources between the ICT and the other International Criminal Tribunals. The ICT was initially allocated 1.5 million USD for its entire life. That may sound a lot compared to the regular courts and indeed it may be hard to justify a bigger budget in a relatively poor country. But that budget is tiny compared to the UN assisted courts: The permanent International Criminal Court in The Hague now has an annual budget of around 130 million USD. You may be astonished to hear that despite having spent 800 million in its first 10 years, the International Criminal Court has only completed one trial, against one defendant, and delivered its first judgment last week. The two ad hoc International Criminal Tribunals -- one for Yugoslavia and one for Rwanda -- have a similar sized budget to the permanent court and together have consumed three billion USD since the mid-1990s. For that money they have dealt with around 250 defendants. Even the relatively modest (so-called) hybrid courts -- the Special Court for Sierra Leone and the Khmer Rouge Tribunal -- cost around 30-40 million USD per year. Taking an average, one can expect the cost per defendant in these UN assisted courts to be at least 15-25 million USD, sometimes considerably more.

With such large budgets one would expect the trials in the UN courts to be incredibly efficient and unquestionably fair. Unfortunately, that is simply not the case and never has been. Let me give you a few examples of fair trial concerns in those courts to help you put the criticisms of the ICT into perspective:

One of the criticisms of the ICT is that it has not satisfied the procedural rights relating to pre-trial detention. If this is correct then the procedures should be reviewed. But when we look at the other courts we see far greater violations. In Cambodia, the first defendant had been held in illegal detention by a local military court for over eight years prior to his transfer to the Khmer Rouge Tribunal.

But contrary to fair trial norms and the expectations of human rights organisations, he did not receive any form of relief from this UN assisted court to compensate him for the breach of his rights.

Another example relates to the speed of the judicial process. According to fair trial principles, every defendant has the right to be tried without undue delay. Provisional detention, meaning prior to conviction, may become arbitrary if it goes on for too long. Yet at the Rwanda Tribunal, around 15 defendants were held in detention for over 10 years before the verdict against them was delivered; and two had to wait in detention for 16 years before being judged at trial. Even at the permanent International Criminal Court -- which had the benefit of coming after the ad hoc tribunals -- the first defendant had to wait in detention for almost seven years before receiving a verdict, and that was on relatively minor charges. It is difficult to see how periods as long as 16 years can satisfy the defendant's right to a speedy trial.

Another criticism is that some of the crimes being tried at the ICT lack precise definition. This is a matter that deserves serious consideration. But a lack of precise definition -- both of the crimes and the modes of liability -- has been a common feature at all the other tribunals, especially before the first judgments have been delivered. The Yugoslav Tribunal judges created an entire new theory of liability -- called joint criminal enterprise -- that had not even been mentioned in its Statute, let alone defined. And several defendants were convicted under joint criminal enterprise without it even being mentioned in the indictment.

Another UN court that prosecuted persons for crimes that lacked specific definitions, was the Special Court for Sierra Leone. In that court defendants were convicted for the crimes of forced marriages and conscription of child soldiers, prior to any existing definition. These are just a few examples of the fair trial challenges faced at war crimes courts around the world. It is remarkable to me that certain actors and organisations are more comfortable criticising the ICT -- which is trying to achieve so much with so little -- than they are criticising the international tribunals, which have achieved so little with so much.

This is not to argue that the practices described above should be taken as the benchmark. The ICT should seek to avoid the problems seen at the other courts and aspire to higher standards. But they do provide some context to the criticisms, particularly when you consider the tremendous resource advantages that the other courts have over the ICT. So it is important that outside observers put their criticisms into perspective, rather than jumping to conclusions that the whole ICT process is doomed. Trials involving war crimes, crimes against humanity and genocide are extremely difficult to administer, it has always been a matter of adapting and improving, and none of the war crimes courts -- however well-funded -- have administered flawless trials or managed to fully meet the expectations of the parties, the public, or human rights organisations, let alone the victims. In fact at all the courts there have been major fair trial concerns and serious disappointments as the judges and lawyers alike have struggled to deal with the novelties and complexities of mass atrocity cases.

Yet despite all the challenges and imperfections and disappointments, these processes of accountability have been worth fighting for. Not only do they bring serious perpetrators to justice, but they also help societies turn the page and help people to move forward with their lives. When discussing judicial procedures, it is always worth remembering that procedural fairness is crucial for both the accused and the victims. Not only does fairness help ensure that the court reaches the right verdict, but it also helps to legitimise the process and to counter any improper attempts to discredit the court. What determines the successes and failures of a tribunal is not the quantity or validity of the criticisms, but how those responsible for the difficult task of prosecuting and adjudicating the crimes respond to the legitimate needs of justice.

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From a historical point of view, proceedings dealing with international crimes are a unique opportunity to clarify pivotal historical events on the basis of a thorough examination of available evidence, and within the context of an adversarial debate. Arguably, no other environment can create comparable conditions for reaching objective conclusions on key historical questions. If the judicial process is managed well, the benefits can be felt for generations to come. Those involved in these important endeavours must not become overwhelmed by the challenges or disillusioned by the criticisms, but must continue to strive to make sure that justice is done.

Richard J Rogers is an expert in international criminal law.
Additional research and assistance for this article was provided by Alex Prezanti.