Effectiveness of US Ambassador Rapp

How effective has the intervention of Stephen Rapp, the US Ambassador at Large for war crimes, been in 'improving' the standards of the Bangladesh war crimes tribunal?

Following his first visit to Dhaka in January this year, I wrote a pretty positive blog hopeful that his intervention may result in some positive changes to the tribunal:

'The recent visit to Bangladesh of Stephen Rapp, US War Crimes Ambassador-at-large may well turn out to be a game changer in terms of the country's International Crimes Tribunal.

Till now the government has simply been burying its head in the sand in terms of the arguments relating to international standards. Its ministers have claimed countless times that the trials will meet these standards, whilst ignoring patent deficiencies in the law and procedure. Rapp's visit may well have forced the government to take the matter of standards seriously, and make the necessary changes.'

Two months latter, at the end of March, Rapp sent a ten page letter to the government with a list of suggestions for changes to the rules, following which he made a further visit.

The government made some changes to its rules of procedure in June.

In November, Rapp came for a third visit where he made a number of further suggestions. Arguably, since they were made on the cusp of the opening of the first trial, these could be seen as lines in the sand for the US government. It is notable that prior to stating each of the recommendation, Rapp, used the word 'important'.

So how do we judge his intervention over all?

1.  Initially misled
The first thing to say is that on his first visit to Bangladesh, Rapp was misled (outwitted?)  by the Bangladesh government who persuaded him that he should only focus on changes to the rules of procedure, and not to the International Crimes (Tribunal) Act 1973 itself, or indeed to the consitution (and in particular article 47(3) and 47(A))

In his March letter he stated that 'from my discussions with representatives of the Bangladesh government and ICT it was understood that it would be difficult to amend the Act which created the tribunal,' but that the government 'welcomed suggestions for amendments to their Rules of Procedure.'  It is true that the letter went onto state that 'if you conclude that adopting [changes to the rules of procedure] will not be sufficient, I would respectfully urge you to consider appropriate statutory amendments,'  however the whole discussion was about a changes in the rules of procedure.

I should acknowledge that at the time of his January visit, I thought that this was a sensible strategy stating in a post that:

'Rapp has however given wise advice in suggesting that the necessary changes can be made by amending the Rules of Procedure (it is not clear that all the necessary changes can be made by changing just the procedures, but it is a very good idea to try to do so without amending the 1973 Act): the government can continue to claim that the 1973 Act itself was adequate, and it was just the Tribunal's procedures that need changing (important it seems for the government's PR), and also the changes can be made quickly (by the Tribunal members themselves, without any parliamentary or, technically, governmental interference).'

However, Rapp must/should have known that changes to the rules of procedure would alone not lead to the changes that he wanted (in particular to allow appeals against interlocutory orders) and, in hindsight, removing from the debate the need for legislative change effectively let the government off the hook. It was left to Human Rights Watch and Amnesty International to raise these points.

Officials clearly misled Rapp about the government's inability to make changes to the 1973 Act and indeed to the constitution. It was quite clear that it could have done so, since the government, a few months later, enacted the fifteenth amendment of the constitution (which, inter alia, in fact, amended Article 47(3) of the constitution as it relates to the prosecution of alleged war criminal expanding the article's remit so that 'any individual' prosecuted under the Act could now not seek constitutional remedies. So rather than removing the application of article 47 of the constitution, the government in the meantime widened it!)

2.  Incomplete rule changes by the government
A detailed post has been separately written on the extent to which the June 2011 rule changes actually implemented the Rapp proposals. In summary:

The following suggestions were complied with fully (4 out of 12):
- introduction of rules to allow victim protection
- introduction of rules regulating detention and bail (though issues remain about application)
- introduction of rules clarifying presumption of innocence and burden of proof
- allowing tribunal to look to international case law for assessing evidence issues (Tribunal has stated in its 3 October order that it can do this. Whether happens or not have to wait and see.)

The following suggestions were complied with in part (2 out of 12)
- introduction of rules incorporating rights in International Convention on Civil and Political Rights
- introduction of rules relating to alibi

The following suggestions were not complied with at all (6 out of 12)
- introduction of rules allowing motions on jurisdiction;
- introduction of rules allowing appeals on interlocutory orders;
- introduction of rules ensuring definition of offences follows ICC's 'elements of offences';
- introduction of rules providing accused certain specified rights when interrogated;
- introduction of rules ensuring prosecution disclosure of exculpatory evidence;
- introduction of rules ensuring participation of foreign lawyers in court;

However, as set out in the detailed note, not all of these are of equal practical importance; it cannot simply be stated that the failure of the tribunal to implement these recommendations in itself raises significant questions about the fairness of the tribunal.

If we look at those recommendations that have not been complied with:
- the proposal to allow 'motions on jurisdiction'
- allowing 'accused specified rights when interrogated'
- not allowing participation of foreign lawyers in court
are arguably not that (practically) significant in that (a) motions on jurisdictions are very rarely successful in international tribunals, and would not have been successful in Bangladesh and (b) in Bangladesh the evidence obtained during an interrogation is not admissible in court and (c) the clients do have local lawyers of their choice (who can still obtain assistance from the international lawyers even if they are not present) and are themselves able to provide an effective defence.

The other three rule omissions are however arguably more significant, and do raise more pertinent questions about the fairness of the tribunal.

3. Failure to acknowledge domestic context
Since the establishment of the tribunal, there has been a constant tension between the extent to which the tribunal should comply with national standards on the one hand, and international ones on the other. Though the government led everyone to expect that the tribunal would meet international standards, the tribunal soon took to calling itself a 'national tribunal prosecuting international offences' arguing that international standards had no role in the tribunal.

Into this, Rapp has come and tried to argue that certain international practices and standards should be applied. Whilst improved standards is clearly a good thing, perhaps Rapp did not provide a sufficiently strong argument in public as to why this particular trial should match international standards, when all the other trials in Bangladesh also fail to meet these standards. What was different about this tribunal that justified particular attention and improved standards? There are answers to these questions, but Rapp perhaps did not make the argument strongly enough.

Moreover, in calling for these changes, Rapp has perhaps failed to appreciate that because domestic legal practice in Bangladesh in certain respects was so different from international practice, it would either be difficult for the government/tribunal to introduce the new practices or it was not that necessary. This in particular relates to two of his recommendations: the question about the disclosure of exculpatory evidence, and the need to have a lawyer present during interrogations (see discussions about this in linked posts)

At the same time, Rapp perhaps has failed to give sufficient acknowledgment to how the tribunal in certain respects  does provide a better forum and improved rights to the accused than those given to those accused in Bangladesh of normal violent offences. This should particularly have been noted since one of the 'important' things that Rapp said in his statement last month was that these accused' should have the same rights accorded to them 'as are guaranteed to Bangladeshi citizens who are charged with other violent crimes.' Well, in some ways the tribunal is providing better rights than those generally accorded to accused in Bangladesh (in relation for example to remand for interrogation, and health provision). It would have been good for Rapp to have acknowledged that clearly, before he made his point about how the accused do not get the other rights that the accused in Bangladesh generally get.

4. Two good recommendations
Two recommendations made by Rapp in his November statement were appropriate

(a) Defining “crimes against humanity”;
Rapp stated:

First, it is important that the judges, at the first opportunity, define what “crimes against humanity” means. The term "crimes against humanity" has been defined in the statutes and cases of international courts. It has not been defined in Bangladesh. In their charge framing order in the first case, the judges said that they would interpret the statute according to Bangladesh law but look for additional guidance in the decisions of international tribunals. But it is not clear whether the prosecution must prove whether the alleged murders and rapes were committed as part of a widespread and systematic attack against a civilian population; whether they were committed on a racial, religious, or political basis; whether the alleged perpetrators would need to have knowledge of the larger attack. At other courts, the elements of the crimes have been defined by the judges in an early ruling. The same can be done here.

In his March letter to the tribunal, Rapp effectively made the same point when suggesting that a rule should be introduced ensuring that the tribunal follows the ICC 'elements of crimes' document. The need for this is explained in point 3 of this post, but in summary it is because it appears from the definition of the offence of 'crimes against humanity' as set out in the International Crimes (Tribunal) Act 1973 can be committed simply through proof of murder or rape etc,. It is not the international offence of crimes against humanity, as understood in 1971.

It appears, however, that the tribunal has missed its opportunity to do this - at least in relation to Sayedee, the first man on trial. This could well create a problem for the tribunal, since it is difficult to see how those with an understanding of international law would support a conviction for Sayedee for crimes against humanity on the basis simply of proving murder or rape etc (assuming  of course that it is proved that Sayedee has committed that offence). If the intention was to prosecute Sayedee  for murder or rape - and not for the international offence of crimes against humanity - it could have done so under the normal penal code provisions. It did not need to set up a special tribunal simply for this.

(b) Same rights as other Bangladesh accused
Rapp stated:

Second, it is important that the same rights be accorded to these accused as are guaranteed to Bangladeshi citizens who are charged with other violent crimes. The Bangladesh constitution and laws provided that this was to be a special court responsible for its own rules and procedures. As the judges have amended the rules to incorporate concepts like the presumption of innocence and proof beyond a reasonable doubt, it is also important that they conduct these trials to ensure that the accused have the same right to consult with their counsel, the same time and ability to prepare their defense, and the same time and ability to challenge the process as they would have in other cases.

I have already commented earlier that Rapp should have acknowledged how, in certain ways, this tribunal has provided rights additional to those normally accused in Bangladesh.

Yet, Rapp is right to point out that in a number of significant ways the accused do not have the same rights as normal accused - in particular there is no ability to challenge any order pre-trial or trial order however inappropriate or indeed necessary it may be. Effectively this repeats the recommendation that Rapp made in his original letter - though again this time Rapp should have made clear that this would need to be an amendment of the 1973 Act itself, and possibly even of the first amendment of the constitution.

With the government not having made the change at an earlier stage it is difficult to see how it could now make this change. Clearly the government (and tribunal) are concerned that if they were to have allowed appeals to interlocutory orders, this could have led to proceedings being delayed. If that was their concern - a legitimate one in the context of Bangladesh legal system where delays are ubiquitous - a special bench could have been created to ensure that the process was done speedily.

5. Two less than necessary recommendations
(a) Protection of witnesses
Rapp stated:

Third, while the rules amendments provided for the protection of witnesses, it is important that a system of protection of witnesses be developed in practice and available to both sides. In the first trial, witnesses for the prosecution have already been listed. The defense must file a list of witnesses by December 7. Witness protection measures must be in effect to ensure that those willing to come forth and tell the truth will not be subject to threats and intimidation.

There was no reason for Rapp to suggest that the tribunal will not make the same orders of protection in relation to the defence witnesses as it has in relation to the prosecution witnesses. As far as I know the defence have not sought, from the tribunal, protection for their witnesses so the tribunal cannot be criticised for not having acted. Perhaps Rapp was just underlining the importance of witness protection - which is obviously very important and about which the defence have complained - but there is nothing that the tribunal has done or not done on this issue that, as far as I can see, is worthy of implicit criticism.

(b) Tribunal accessiblity
Rapp stated:

'Finally, and most importantly, the process must be accessible to all. It is not easy for members of the public to attend court sessions. Ideally, the trial sessions should be broadcast on television or radio, or weekly reports be aired that would show key testimony, arguments, and rulings. This is being done now in the trials in Cambodia of those alleged to be responsible for the atrocities committed in that country in the 1970s. If this is not possible in Bangladesh, neutral observers should be permitted to follow the trials and produce daily and weekly reports that would be available through the internet and other media.'

It is not clear why Rapp thought that this was the 'most important' of the issues.  No criminal court in Bangladesh is at present televised. Moreover, in this case, there are legitimate concerns about the protection of witnesses on both sides, with the tribunal at present not allowing either party to provide in court personal details about the prosecution witnesses.

Whilst of course rules could be introduced to ensure that pictures of the witnesses were not televised, one can see why this would just add further complexity for the tribunal to manage. The tribunal is well covered in the newspapers, radio and television at present - so arguably there is no particular need for proceedings to be on television.

As far as I know, there is nothing - and has never been anything - to stop neutral observers coming to the tribunal and taking notes of proceedings.

So in my view this was a rather unnecessary recommendation.

6. In conclusion ....
I had originally thought that Rapp's intervention in Bangladesh could be a 'game changer'. It has been an important intervention in particular since there has been no other kind of formal international engagement with the tribunal. Some important changes were made to the rules of procedure that probably would not have been made without his involvement. However, it is pretty clear that the tribunal and the government are now not listening - and whilst it is a good thing for Rapp and others - to continue to come and assess the tribunal, I would be surprised if they will have much of a positive impact upon the law and rules.