The present interim government of Bangladesh has decided to try the former ousted prime minister Sheikh Hasina before the International Crimes Tribunal (ICT) accusing genocide and crimes against humanity during the students led anti-discrimination mass uprising between 1 July-5 August along with all involved in these crimes. The decision follows the first complaint made against her with the probe agency of the ICT on 14 August together with former ministers, law enforcers and her party men.
There were huge criticisms both politically, legally,
nationally and globally including Human Rights Watch, Amnesty International,
the UN Human Rights Council etc against the Hasina formed tribunals for lack of
neutrality and non-compliance with the international legal standard. Even
members of this current interim administration also critiqued boldly about the
political motive, lack of due process and procedural fairness of the ICT.
Thus, the tribunal as well as the ICT Act need massive
legislative and institutional reform to align with the international standard
and ease the previous controversies against it. The ICT Act is outdated and has
not been updated after the evolution of new international criminal law
jurisprudence specially after evolving the ICC. Within the existing framework,
the trial of Sheikh Hasina and her allies will not be fair and neutral. This may
lead to concerns about using the Act as a tool for political vendetta rather
than genuine justice.
Consequently, if Hasina's trial also takes place under
the same arrangement, then it will again be condemned by the international
community. The perpetrators of the July-August mass killing will also get the
opportunity to vindicate the credibility of the trial even though they did not
take all these criticisms into notice themselves earlier.
Experts have identified both substantive and
procedural flaws in the legal framework and practice of the tribunal. Human
rights and legal monitor bodies have also urged to define crimes against
humanity and genocide comprehensively in compliance with international criminal
law, and that due process rights for the accused be enlarged. The ICT Act, as
amended, did not permit the accused a right against self-incrimination or a
right to legal counsel when being questioned by the investigator. Moreover, the
Act does not provide robust witness protection measures, which could discourage
witnesses from coming forward or lead to intimidation, thus compromising the
integrity of the proceedings.
Other loopholes include restrictions on interlocutory
appeals to the Supreme Court and limitations on challenging the composition of
the judicial bench. Earlier, the appointments of the prosecutors and judges of
the tribunal were condemned due to their lack of expertise and affiliation with
the then government. Under section 6(8) of the Act, the formation of the
tribunal cannot be challenged either by the prosecution or by the accused. The
government has already appointed the chief prosecutor and four other lawyers as
the prosecutor of the tribunal although reorganisation of the tribunal is yet
to done.
The defective application of the modes of liability
and the ingredients of offenses presents critical concerns as to the fairness
of the trial. During Hasina's regime, the tribunals also prohibited open access
for foreign observers and journalists. Free observation is crucial not only
during trials but also in the pre-trial stage for transparency. Furthermore,
the defence was not allowed to engage foreign lawyers or given adequate time to
prepare its case which needs to be addressed adequately now. Although the Law Adviser confirmed that foreign lawyer
will be allowed to get involved in hearing process by amending the law. He also
informed that foreign agencies would get opportunity to observe the process as
they may not be able to involve with the trial process directly due to the
existing capital punishment provision in the law.
The tribunal's significant limitation in defining the
'crimes against humanity' as it ignores considering the newest criminal law
necessity of crimes against humanity. It needs to be committed in a 'widespread
and systematic' attack against any civilian population. This jurisprudence
emerged during the 1990s by the UN-backed ad hoc international criminal
tribunals (the ICTY and the ICTR) and is regarded as the customary rule of
international law. Subsequently, the Rome Statute also accepted this principle
of customary international law and other internationalized criminal tribunals,
prosecuting crimes against humanity. Therefore, the definition of crimes
against humanity under the ICT Act does not comply with present and past
customary international law advancements, which are necessary for identifying
and differentiating the same crimes from ordinary crimes.
Hence, in prosecuting and punishing such crimes, the
law needs to include the customary law ingredients of crimes against humanity;
otherwise, the crimes in question never be separated from domestic crimes of
murder, extermination, torture, etc. If the prosecuting tribunal neglects to
apply customary law requirements of crimes against humanity, the legitimacy of
the tribunal sets substantial doubt in ensuring criminal justice for the
parties.
The ICT also put a legal obligation on the State to
enact law prohibiting and punishing the crime of genocide at the national
level. According to the Constitution of Bangladesh, a treaty obligation is also
conferred by the Genocide Convention, 1948 on Bangladesh as a contracting party
to it.
The current interim administration has already sent an
official letter to the UN High Commissioner for Human Rights to probe the
recent student movement and uprising along with finding out the causes of past
and latest violence and recommendations for necessary measures to prevent such
occurrences in future. However, the UN has historically opposed the death
penalty and campaigned for its abolition. The ICT Act has provision for death
sentence among other suggested punishments.
Nevertheless, section 8 of the ICT Act implies that an
agency will be established by the government for the purpose of investigation.
Now, a question may come whether the UN prob team will be a part of that
agency. If not, then it is not clear under the existing provisions as to the
acceptance of an investigation report prepared by the UN as the
government-constituted agency is primarily responsible for investigation.
However, the Constitution
of Bangladesh has provision to exclude fundamental rights including protection in
respect of trial and punishment for the war criminals held at the
ICT. The very 1st amendment to the Constitution (Art. 47(3)) struck out
fundamental rights for member of armed, defence or auxiliary forces at the ICT.
Subsequently, the 15th amendment took fundamental rights away for any
individual, group of individuals or organization as well. Consequently, there
was criticism about the ICT for going beyond the scope of constitutionally
guaranteed fundamental rights.
The recent anarchy in the courts raises serious
questions relating to the fairness of justice and the rights of the accused.
Also, there are suspicions about those arrests, for example, former state
minister for Posts, Telecommunications and Information Technology Zunaid Ahmed
Palak had been detained at the airport on 6 August during an attempted
departure. Albeit the authority did not inform under which law they captured
him at the airport. Later, police showed him arrested on 14 August. As a
result, his condition from 6 to 14 August is not certain whereas
constitutionally police cannot detain anybody for more than 24 hours without
producing him to the magistrate.
The government has not disclosed their stance as to
how do they deal with the complaints, investigation, appointment of prosecutor,
judges, trial etc. in the ICT. The government may set up one or more designated
contact points for victims of violations, or their family members, to seek
assistance, information and advice as filing a flawless case is highly
complicated which private individuals cannot do.
It is expected that the present administration will
ensure the rule of law and respect human rights for all including the accused
after the exemplary fall of the repressive political regime and mass uprising.
Criminals must be brought before justice adhering to proper and just legal
proceedings.
Published in the New Age as Op-ed on 8 September 2024 on page 9.
Published on the International Law Blog on 23 September 2024
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