July 8, 2009

Prime Minister Sheikh Hasina

Prime Minister's Office
Old Sangsad Bhaban
Tejagaon, Dhaka-1215
Bangladesh

Re: International Crimes (Tribunals) Act

Dear Prime Minister,

Human Rights Watch welcomes your government's commitment to bring to justice those responsible for war crimes in connection with the war of 1971. We are pleased that the government has decided to set up special courts with a special prosecution team and that you have tabled some amendments in parliament to the International Crimes (Tribunals) Act of 1973, as Law Minister Shafique Ahmed described it, to make the law "fair and neutral."

However, additional amendments to the 1973 law are necessary to ensure that trials under the Act are carried out in accordance with Bangladesh's international human rights obligations, international criminal law, and Bangladesh's constitution. While the International Crimes (Tribunals) Act may have been largely based on international standards at the time of its drafting, international criminal law has evolved significantly since, including with the adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 and its coming into force after ratification by 60 states in 2002. The Rome statute and the ICC's corresponding jurisprudence reflect international norms, which Bangladesh, as a signatory to the Rome statute, should follow.

Human Rights Watch strongly supports a successful legal and judicial process to hold the perpetrators of crimes in 1971 accountable. Justice for these atrocities is long overdue. But without additional amendments to the Act the process may not meet international fair trial standards. This could result in a lack of credibility for the process in Bangladesh and internationally, which would only benefit those responsible for the horrific crimes of this period.

1.    Crimes

Section 3 of the Act says that a tribunal set up under the Act will have jurisdiction over crimes against humanity, crimes against peace, genocide, war crimes, violations of any humanitarian rules applicable in armed conflict laid down in the Geneva Conventions of 1949, and any other crimes under international law. We suggest that the definition of genocide, crimes against humanity and war crimes, and the definition of liability for crimes, be amended to be the same as those under the Rome statute of the International Criminal Court so that the court's verdicts will be internationally recognized.

2.   Judges

Section 6 (2) of the Act states that a person who is qualified to be a member of a general court martial may be appointed as chairperson or member of a tribunal. This provision should be amended. To meet current understanding of international law on a fair trial, in particular that military judges should only sit on cases that are of a strictly military nature (and not on cases involving civilians), the tribunals should be exclusively composed of qualified civilian judges.

Section 6 (8) of the Act provides that neither the composition of the tribunal nor its chairperson or members may be challenged. This section should be amended to ensure that the requirements of Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a party, provides that everyone is entitled to be tried by a competent, independent and impartial tribunal. No judge shall participate in a case in which his or her impartiality might reasonably be put in doubt. Both the prosecutor and the accused should have the power to request the disqualification of a judge.

3.    Rights of the accused

Bangladesh's law enforcement agencies have a long history of torture and using coercion and duress to force criminal suspects to confess to crimes. Special attention has to be paid to prevent torture or other irregularities.
 
Section 17 of the International Crimes (Tribunals) Act provides some protections, such as providing the accused the right to give explanations relevant to the charge against him, conduct his own defense or have the assistance of counsel, present evidence at the trial, and cross-examine witnesses. Section 12 also indicates, "where an accused person is not represented by counsel the tribunal may, at any stage of the case, direct that a counsel shall be engaged at the expense of the Government to defend the accused person and may also determine the fees to be paid to such counsel." These sections should include additional protections to ensure that Bangladesh lives up to its international obligations under the Convention against Torture and articles 9 and 14 of the ICCPR, and include the rights set out in articles 55 and 67 of the Rome Statute of the ICC, including the right of the accused to:

  • not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment: All evidence obtained by torture or other ill-treatment should be excluded;
  • have adequate time and facilities for the preparation of the defense;
  • communicate with counsel in confidence;
  • be tried without undue delay;
  • not be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
  • have legal assistance of the person's choosing or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it;
  • not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.

In addition, the court should include in the statute the principle of ne bis in idem which ensures that no person will be tried with respect to conduct that formed the basis of a prior conviction or acquittal in another court.

4.      Setting-up a Defense Office

A fundamental component of a fair trial is "equality of arms." Equality of arms refers to the principle that every party must be afforded a reasonable opportunity to present his or her case under conditions that do not place the party at a substantial disadvantage vis-à-vis the opponent. It is as yet unclear how many accused will be brought before the court. However, there are important lessons that can be learned from the experience of other courts handling these crimes that may well be applicable here.

Recent international experience has shown the important role that a "Defense Office" plays in protecting the rights of the accused. At the Special Court for Sierra Leone, the head of the Defense Office advocates with the court administration and before the judges on issues relevant to defense representation and fair trials. The office further helps to ensure that defense counsel have adequate support to prepare and present cases. A "Defense Office" was also established at the War Crimes Chamber in Bosnia in the form of a Criminal Defense Support Section, which is generally known by its Bosnian acronym OKO (Odsjek krivicne odbrane), which provides legal assistance to defendants in war crimes cases.

The Defense Office in these institutions also plays the vital role of maintaining a list of qualified counsel who can be assigned to the accused in the event that the accused cannot afford counsel of his or her own choosing, and of providing resources to counsel appointed to the accused. Consideration should be given to establishing a "Defense Office" along these lines within this Tribunal.

5.    Interpreter

English and Bengali are the official languages in the trial process. Section 10(3) of the Act states that the accused may be provided with an interpreter if he or she is unable to express himself or herself in, or does not understand, English. This section should be amended to make it mandatory to provide the free assistance of an interpreter, in accordance with Article 14(3)(f) of the ICCPR, for all accused who cannot understand or speak the language used in the court.

6.   Grounds for excluding criminal responsibility or jurisdiction

The Act should specify the grounds for an individual to claim that he or she does not have criminal responsibility. Taking into account the Rome Statute (article 31), grounds for excluding criminal responsibility should include mental capacity, reasonable and proportional self-defense, and actions taken under duress resulting from an imminent threat of death or serious bodily harm. 

Article 26 of the Rome Statute says, "The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime." A similar provision should be added to the International Crimes (Tribunals) Act.

7.    Witness and victim protection

The Act should require the protection of victims and witnesses appearing before the court, including ensuring their safety, dignity, privacy, and physical and psychological well being. This obligation, which is also included in the Rome Statute, extends to all witnesses - without regard to their affiliation with either the prosecution or the defense - and to all victims.

 Effective protection and support for witnesses and others at risk due to testimony provided during these trials will be an essential aspect of the court's operations. The ability to keep and attract witnesses will depend on the ability to protect them and treat them with dignity. The experience of other tribunals for these types of crimes strongly suggests that the creation of an adequately resourced witnesses' and victims' protection unit within the court administration is an essential component of their successful functioning.

The importance of arrangements for long-term protection and support, including after the court completes trials and operations, cannot be overstated. At a minimum, a "Witnesses and Victims Protection Unit" should be able to provide for the relocation of witnesses where appropriate; protection of the witnesses and their family members before, during and after court appearances; protection of witnesses' personal information, and secure transportation to and from the court.

8.   Rules of procedure

The rules of evidence and procedure must be consistent with international legal standards and afford full guarantees of the right to a fair trial, including the right to challenge.

9.   Death penalty

Section 21 (2) of Act allows for the death penalty to be imposed. Life imprisonment is the maximum penalty that can be handed down by the International Criminal Court, the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia. The UN General Assembly adopted a resolution in December 2007 calling for a moratorium on executions with a view to abolishing the death penalty. Human Rights Watch opposes the death penalty in all circumstances as an inherently cruel and unusual form of punishment and a violation of fundamental human rights and therefore recommends this penalty be removed.

Thank you for your consideration. We look forward to discussing this further and assisting the Bangladeshi government to hold those responsible for serious crimes accountable in a manner consistent with Bangladesh's constitution and international human rights standards.

Sincerely,

Brad Adams
Executive Director
Asia Division

cc:  Minister of Foreign Affairs Dr. Dipu Moni
       Minister of Law, Justice & Parliamentary Affairs, Barrister Shafique Ahmed
       Minister of Home Affairs, Sahara Khatun