Home | Back Issues | Contact Us | News Home
“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 180
March 6, 2005

This week's issue:
Law Opinion
Human Rights Monitor
Star Law Analysis
Rights Monitor
Human Rights Advocacy
Law Book Review
Law Campaign
Law Week

Back Issues

Law Home

News Home



Law opinion

Why trials for oppressive dictators pose difficulty?

Barrister Harun ur Rashid

The trial of former dictator of Yugoslavia, Slobodan Milosevic, at the UN Tribunal at The Hague ( Netherlands) has demonstrated that the trial process has bogged down after three years of hearings. Milosevic's frequent illness has also contributed to adjournment of hearings several long periods.

Legal experts do not know how long the trial will continue because the defence case has just began and Milosevic wants to call 1,000 witnesses, including the British Prime Minister Blair, and the former US President Bill Clinton. The trial may take at least another couple of years before the prosecution is able to sum up the case against Milosevic.

Millions of dollars are being spent for the trial and the countries that have been funding trial- expenses are getting worried that the trial may continue for years together and their budget for the trial expenses will be blown out. Furthermore, there is a fear that Milosevic may be acquitted because of insufficient evidence. If this occurs, it will be a big blow to trial for dictators for horrific crimes committed on the people within its borders and beyond.

Main principles applicable in criminal cases
Two main principles apply in a criminal trial in domestic courts.
First, there is a presumption of innocence of the accused person until it is proved beyond reasonable doubt. The prosecution has to prove the charge and the accused person can remain silent during the whole trial, pleading only "not guilty".

Second, sufficient evidence must be established linking directly between the accused person and the crime. If there is no sufficient evidence against the person, the prosecution will fail because the charge has not been proved against the accused beyond reasonable doubt.

For example, in a trial on a charge for theft, there is likely to be an exhaustive exanimation of events and circumstances to establish whether the accused person was directly involved in what occurred. The prosecution has to prove by presenting evidence the guilt of the accused beyond reasonable doubt

If this domestic approach is applied in respect of war crimes, genocide and crimes against humanity that occurred over a period of years in different parts of a country, it is very difficult to pin a dictator down to the crimes.

The same problem caused the UN tribunal in Rwanda to collapse. It was set up by the UN to try the Hutu tribesmen who massacred 800,000 Tutsi tribe people in 1994. Although some cases were heard, most of the accused had to be released from prison waiting for trial and eventually a process of reconciliation was substituted.

The same problem is likely to occur when and if Saddam Hussein is put on trial. It is reported that about 1,000 lawyers including 400 Americans and Europeans are ready to defend him.

Debate among legal experts
There is a debate as to whether domestic criminal procedures should apply to the trial of international crimes. Serious considerations are being thought of as to what kind of procedures should be applied for war crimes, genocide and crimes against humanity.

One group of lawyers says that if domestic procedures of "proving beyond reasonable doubt" in criminal cases is applicable, many dictators who are allegedly responsible for such heinous crimes would be acquitted. They argue that the presumption of innocence for trial for those in the category of Saddam Hussein and Milosevic is to be abandoned.

The other group believes that presumption of innocence should not be abandoned because trial would degenerate into political revenge.

New suggested procedures for gross international crimes
It is argued that since the dictators held the highest executive office of the land, it has to be presumed that they had the knowledge of the crimes in question as the "buck stops at the executive of the land".

Consequently, the burden of proof will fall on them, not on the prosecutors, to show that they did not know anything about the occurrence of crimes. In that event, prosecution will not need to prove through submission of evidence of knowledge of a dictator through the "chains of command" principle and letters of authority emanating from a dictator

During the post-Second World War trial in Tokyo in 1945-46 against Japanese military leaders, a legal principle, known as "<>Yamashita principle<>" ( named after accused General Yamashita) emerged. Under the principle, an accused person could not deny the knowledge of a crime because as commander of military operations, he ought to have known the occurrence of crimes within his watch. His negligence of duty could not be cited as a defence for him.

It may be recalled that there were no instructions in writing from Hitler as to the genocide of Jews in the early 40s under the Nazi regime. If he did not commit suicide, it would have been very difficult to prove conclusively that he was responsible for exterminating millions of Jews in Europe. For trial of such crimes, it is usually impossible to find "the smoking gun", that is, the direct order from a dictator that the killing of civilians be carried out.

Concern for new procedures
If new procedures are in place, many legal experts assert that trial will not be fair. They believe it would be a political revenge, manipulating the legal system, for the victors. Furthermore, the 1948 Universal Declaration of Human Rights, in its Article 11, provides: " Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."

Consequently, the proposed new procedures will be contrary to the UN Declaration of Human Rights that has become a part of customary international law, according to overwhelming number of legal experts and therefore cannot be violated by member-states of the UN.

It is noted that former Chilean dictator General Augusto Pinochet remains free, although several attempts have been made to put him to trial. There seems to be a big dilemma in pursuing a trial against a dictator.

On the one hand, there is a compelling need to put a dictator on trial for the commission of horrific crimes during their iron- fist rule, on the other hand, the proposed new procedures would suggest not only a complete abandonment of the basic rights of an individual under the Universal Declaration of Human Rights but also a failure of principles of fair and impartial trial.

Given the above dilemma, a new balanced new procedure may be worked out at the session of UN International Law Commission in consultation with The Hague-based International Criminal Court to meet justice with fairness.

The author is former Bangladesh Ambassador to the UN, Geneva

Photo : BBC


© All Rights Reserved