This is the second of four posts looking at different aspects of the 3 October charge-framing order. (To see the first one relating to the charges themselves, click here.)
This note is primarily concerned with the part of the order where the tribunal summarised the legal arguments made both by the prosecution and defence, and sets out the views of the tribunal.
The following comments can be made about this section of the tribunal order.
(a) Summary by tribunal of arguments
The defence (and indeed the prosecution) arguments have been heavily summarised so that quite complex and important legal arguments are reduced in the Tribunal's order simply to one line, or not mentioned at all.
So for example:
- the defence pointed to section 16 of the ICTA 1973 and Rule 20(1) of the rules of procedure which set out what information is necessary to be contained in any 'charge' including 'the date' of the offence - but these are not referred to in the order. As noted in the previous note, the tribunal charge-framed seven counts which provide no dates.
- arguments made by the defence relating to a decision by the Extraordinary Chamber of the Courts of Cambodia on what was international customary law in relation to 'crimes against humanity' in 1974 has not been mentioned;
(b) Small factual errors
There are a couple of small factual mistakes made by the tribunal.
The tribunal states at one point, 'In support of [the defence] submissions, the learned counsel drew our attention to a number of decisions of the International Criminal Tribunal for the Former Yugolslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and Special court of Sierra Leone (SCSL) which have also been cited in the application for discharge.'
However, it appears that no arguments were made by the defence either in their written or oral application that referred to the ICTR or the SCSL.
There are however a number of important arguments made by the defence that referred to case law of the Extraordinary Chamber of the Courts of Cambodia (ECCC), but the tribunal's order does not refer to the ECCC.
(c) Tribunal response to defence argument about the offence of 'crimes against humanity'
In its written application (read out in the Tribunal) seeking discharge of Sayedee, the defence made a number of arguments concerning this offence. These were:
- that the Bangladesh tribunal had to hear arguments and make a ruling on whether the offence of 'crimes against humanity' could only be committed in the context of an international conflict or also in relation to other non-international conflicts. (In its written application the defence had in fact argued that the Extraordinary Chamber of the Courts of Cambodia (ECCC) had ruled, prior to trial, that in 1974 international law did allow the offence to be committed without an international conflict. Yet, despite this, the defence argued that the Bangladesh tribunal still had to make a clear ruling on this point);
- more significantly, that the tribunal had to make a ruling on what conduct constituted crimes against humanity in 1971 and in particular whether the attack must be 'widespread of systematic'. The defence argued in its application that the under international law, a person cannot be prosecuted for an offence that was not part of customary international law at the time when the offence took place, pointing to the Extraordinary Chamber of the Courts of Cambodia which had ruled that in 1974 crimes against humanity could only be committed if a number of:
- that the tribunal needed to define the constituent elements of the offence of 'crimes against humanity' - namely, murder, rape etc - as it could not simply rely on the offences set out in Bangladesh national law.
In relation to these arguments made by the defence the tribunal stated in its order:
- the order does not engage directly with the specifics of the defence arguments, but simply holds that 'the definitions are quite clear and complete without any ambiguity ... [and] are adequate in all aspects.'
- the order does not deal specifically with the defence argument that the offence of crimes against humanity, as set out in the Act, does not contain any mental element, though it argues that the offence is clear and without ambiguity, and 'adequate in all aspects'.
- the order states that, the 'crimes enumerated ... were very much part of customary international law.' The order also subsequently states in the context of a discussion about Article 15 of the International Covenant on Civil and Political Rights, that it 'needs to be reiterated that the Act proscribes international crimes that were regarded as crimes under international law long before the Act was enacted.'
It is not clear from the order how the Tribunal came to this decision. The defence, in its application made a strong argument that at least in 1974, the offence of crimes against humanity under 'customary international law' required several constituent elements which do not exist in the 1973 Act in particular the need for the attack to be 'widespread or systematic'. The tribunal did not deal with this argument: its order does not even mention the Cambodian case law or why it is of the view that the offence, as set out in the 1973 Act, is 'very much part of customary international law.' The tribunal does not cite any case law of any kind to support such a contention.
- The tribunal states: 'we see no reason why should we be trying to find gaps which are not there or try to borrow definitions from fairly recent international tribunals where the International Crimes Tribunal of Bangladesh do not have any such obligation to do so.'
The interesting conundrum is that the ICT has stated many times that it is prosecuting 'international offences.' If this is so, arguably, it has to take account of what international law states in relation to the definition of these offences, otherwise it is not prosecuting international offences, but simply a variation of the offence as adopted by Bangladesh law.
Other legal points
The order states,
In response, the tribunal might argue that the comments about the Al Badr etc are simply 'facts of common knowledge' and that according to section 19(3) of the 1973 Act, 'A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.' However, if so, one would imagine that 'facts of common knowledge' would first need to be agreed between both parties, or where they cannot be agreed, the tribunal would have to make a ruling after hearing both sides of the argument.
This note is primarily concerned with the part of the order where the tribunal summarised the legal arguments made both by the prosecution and defence, and sets out the views of the tribunal.
The following comments can be made about this section of the tribunal order.
(a) Summary by tribunal of arguments
The defence (and indeed the prosecution) arguments have been heavily summarised so that quite complex and important legal arguments are reduced in the Tribunal's order simply to one line, or not mentioned at all.
So for example:
- the defence pointed to section 16 of the ICTA 1973 and Rule 20(1) of the rules of procedure which set out what information is necessary to be contained in any 'charge' including 'the date' of the offence - but these are not referred to in the order. As noted in the previous note, the tribunal charge-framed seven counts which provide no dates.
- arguments made by the defence relating to a decision by the Extraordinary Chamber of the Courts of Cambodia on what was international customary law in relation to 'crimes against humanity' in 1974 has not been mentioned;
(b) Small factual errors
There are a couple of small factual mistakes made by the tribunal.
The tribunal states at one point, 'In support of [the defence] submissions, the learned counsel drew our attention to a number of decisions of the International Criminal Tribunal for the Former Yugolslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and Special court of Sierra Leone (SCSL) which have also been cited in the application for discharge.'
However, it appears that no arguments were made by the defence either in their written or oral application that referred to the ICTR or the SCSL.
There are however a number of important arguments made by the defence that referred to case law of the Extraordinary Chamber of the Courts of Cambodia (ECCC), but the tribunal's order does not refer to the ECCC.
(c) Tribunal response to defence argument about the offence of 'crimes against humanity'
In its written application (read out in the Tribunal) seeking discharge of Sayedee, the defence made a number of arguments concerning this offence. These were:
- that the Bangladesh tribunal had to hear arguments and make a ruling on whether the offence of 'crimes against humanity' could only be committed in the context of an international conflict or also in relation to other non-international conflicts. (In its written application the defence had in fact argued that the Extraordinary Chamber of the Courts of Cambodia (ECCC) had ruled, prior to trial, that in 1974 international law did allow the offence to be committed without an international conflict. Yet, despite this, the defence argued that the Bangladesh tribunal still had to make a clear ruling on this point);
- more significantly, that the tribunal had to make a ruling on what conduct constituted crimes against humanity in 1971 and in particular whether the attack must be 'widespread of systematic'. The defence argued in its application that the under international law, a person cannot be prosecuted for an offence that was not part of customary international law at the time when the offence took place, pointing to the Extraordinary Chamber of the Courts of Cambodia which had ruled that in 1974 crimes against humanity could only be committed if a number of:
'prerequisites are established to the required standard: (i) there must be an attack; (ii) it must be widespread or systematic; (iii) it must be directed against any civilian population; (iv) it must be on national, political, ethnical, racial or religious grounds; (v) there must be a nexus between the acts of the accused and the attack; and (vi) the accused must have the requisite knowledge”.- that the '1973 Act does not state what is the requisite knowledge that must be proved by the prosecution,' and this needs to be dealt with in some way by the Tribunal setting out what was the mental element required.
- that the tribunal needed to define the constituent elements of the offence of 'crimes against humanity' - namely, murder, rape etc - as it could not simply rely on the offences set out in Bangladesh national law.
In relation to these arguments made by the defence the tribunal stated in its order:
'In regard to definition of crimes mentioned in the Act and elements thereof, we are of the view that the definitions are quite clear and complete without any ambiguity. The Act was drafted in an era when the crimes enumerated therein were fairly known and understood to the world, and were very much part of customary international law. Therefore, we see no reason why should we be trying to find gaps which are not there or try to borrow definitions from fairly recent international tribunals where the International Crimes Tribunal of Bangladesh do not have any such obligation to do so. However, the Tribunal may take into account jurisprudential developments from other jurisdictions should it feel so required in the interest of justice.The following comments can be made about this part of the tribunal's ruling:
In regard to thresholds of the crimes against humanity and its nexus to armed conflict and the requirement of knowledge, as stated above, we are of the view that the crimes under the Act are adequate in all aspects and therefore it is not necessary to visit other recent notions developed by the statutes of various international tribunals.'
- the order does not engage directly with the specifics of the defence arguments, but simply holds that 'the definitions are quite clear and complete without any ambiguity ... [and] are adequate in all aspects.'
- the order does not deal specifically with the defence argument that the offence of crimes against humanity, as set out in the Act, does not contain any mental element, though it argues that the offence is clear and without ambiguity, and 'adequate in all aspects'.
- the order states that, the 'crimes enumerated ... were very much part of customary international law.' The order also subsequently states in the context of a discussion about Article 15 of the International Covenant on Civil and Political Rights, that it 'needs to be reiterated that the Act proscribes international crimes that were regarded as crimes under international law long before the Act was enacted.'
It is not clear from the order how the Tribunal came to this decision. The defence, in its application made a strong argument that at least in 1974, the offence of crimes against humanity under 'customary international law' required several constituent elements which do not exist in the 1973 Act in particular the need for the attack to be 'widespread or systematic'. The tribunal did not deal with this argument: its order does not even mention the Cambodian case law or why it is of the view that the offence, as set out in the 1973 Act, is 'very much part of customary international law.' The tribunal does not cite any case law of any kind to support such a contention.
- The tribunal states: 'we see no reason why should we be trying to find gaps which are not there or try to borrow definitions from fairly recent international tribunals where the International Crimes Tribunal of Bangladesh do not have any such obligation to do so.'
The interesting conundrum is that the ICT has stated many times that it is prosecuting 'international offences.' If this is so, arguably, it has to take account of what international law states in relation to the definition of these offences, otherwise it is not prosecuting international offences, but simply a variation of the offence as adopted by Bangladesh law.
Other legal points
The order states,
'Except those who opposed, hindu communities like others in Bangladesh supported the liberation war which in fact drew particular wrath of the Pakistan military and their local collaborators, who perceived them as pro-Indian and made them targets of attack, persecution, extermination and deportation as members belonging to a religious group.'More specifically, it goes onto say:
'To prosecute [the Pakistan army's] policy of occupation and repression and in order to crash the aspiration of the freedom-loving people of an independent Bangladesh, the Pakistan government and the military setup number of auxiliary forces such as the Razakars, the Al-Badar, the Al-Shams, the Peace Commrttee etc, essentially to collaborate with the military in identifying and eliminating - all those who were perceived to be sympathized with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Flindus, political groups belonging to Awami League and other pro-Independence political parries, Bangalee intellectuals and civilian population of Bangladesh.'Arguably, these are issues that require to be decided at trial. Clearly, we all know that atrocities took place during the 1971 war, primarily committed by the Pakistan military. However a key issue before the tribunal is the extent to which these were committed with the assistance of 'collaborators' and what role these groups played in 'identifying and eliminating - all those who were perceived to be sympathized with the liberation of Bangladesh.' Arguably, this would appear to be an issue on which evidence needs to be heard.
In response, the tribunal might argue that the comments about the Al Badr etc are simply 'facts of common knowledge' and that according to section 19(3) of the 1973 Act, 'A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.' However, if so, one would imagine that 'facts of common knowledge' would first need to be agreed between both parties, or where they cannot be agreed, the tribunal would have to make a ruling after hearing both sides of the argument.
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