Amendments to Tribunal’s Rules Fall Short of International Standards
(New York) - Amendments to the rules of procedure for Bangladesh's International Crimes Tribunal (ICT) address some key problems but fail to bring other areas of the law and rules into compliance with international standards, Human Rights Watch said today. The tribunal was established to bring to trial those responsible for gross violations of the laws of war, crimes against humanity, and genocide during the country's struggle for independence in 1971.
Human Rights Watch and others have long pressed for amendments to the constitution, Bangladeshi law, and the tribunal's rules of procedure to ensure that trials are fair and that the tribunal complies with international standards. The changes are needed in areas such as requirements for a clear articulation of the crimes, the due process rights of the accused, and victim and witness protection.
Judges at the tribunal approved the changes on June 28, 2011. Announcing the new rules, Shahinur Islam, the tribunal's registrar, said that the rules were a big step forward but admitted, "International standards, we are not yet there."
"We want these trials to succeed in bringing the people responsible for the horrific crimes of 1971 to justice," said Brad Adams, Asia director at Human Rights Watch. "While the amendments are a significant improvement, key problems still need to be fixed to ensure fair trials and avoid unnecessarily lengthy appeals."
Under the amended rules, the accused will have the rights to the presumption of innocence, a fair and public hearing with counsel of their choice, and to apply for and be granted bail. The amendments prohibit convicting a person twice for the same crime or requiring the accused to confess guilt. The prosecution bears the burden of proving beyond a reasonable doubt that the accused committed the crime.
Another critical amendment relates to creation of a victim and witness protection system. The changes authorize the tribunal to ensure the physical well-being of victims and witnesses and to order in camera proceedings if that is in the best interests of a victim or witness.
Human Rights Watch said that while these changes are positive, further amendments to the rules, law, and constitution are necessary to ensure fair trials, including:
- Allowing an accused to question the impartiality of the tribunal. At present, the law prohibits this.
- Amending Article 3 of the act regarding the enumeration of crimes to ensure that the definitions of war crimes, crimes against humanity, and genocide conform with international standards.
- Ensuring that the defense is given adequate time to prepare, instead of the current three weeks.
- Providing the accused the right to make appeals during the trial (interlocutory appeals) instead of only at the end. The amendments attempt to address this issue by allowing the tribunal to review any of its orders, either on its own motion or on application by either party. This amendment, while a step in the right direction, does not address whether a different appellate bench would then rule on the order's merits. For an appellate review to meet international standards, an independent panel of judges must be appointed to conduct the review.
- Establishing a defense office, as has been done when dealing with similar crimes in other countries.
Human Rights Watch repeated its call for the Bangladeshi parliament to repeal Article 47(A) of the constitution, which states, "This Article further denies any accused under the ICT Act from moving the Supreme Court for any remedies under the Constitution, including any challenges as to the unconstitutionality of Article 47(A)."
This provision denies an accused protections that Bangladesh guarantees to everyone else, including provisions under Article 33 related to safeguards against arrest and detention; provisions under Article 35 related to protections in respect of trial and punishment; and provisions under Article 44 related to enforcement of fundamental rights, including a right to apply to the High Court for protection of these rights. This article should be repealed as it could form the basis for complaints that fair trial standards are not met under the ICT Act.
"Bangladesh has promised to meet international standards in these trials, but it has some way to go to meet this commitment," Adams said. "Now is the time for one last demonstration of political will to make this happen. Bangladesh could then set the standard for other nations that have suffered from unspeakable abuses at the hands of its own people."