Following the final day of proceedings, the court provided its judgement in the Abdul Quader Mollah case on 5 February 2013
This is part one of the judgment - an introductory section
To see part 5, click here - dealing with charges, 5 and 6
To see part 6, click here - dealing with contextual requirements to quality offenses as crimes against humanity and other defense arguments
To see part 7, click here - conclusion and sentence
To see part 7, click here - conclusion and sentence
I. Opening words
This Tribunal (ICT-2), a lawfully constituted domestic judicial forum, after dealing with the matter of prosecution and trial of internationally recognized crimes i.e. crimes against humanity perpetrated in 1971 in the territory of Bangladesh, during the War of Liberation is going to deliver its verdict in a case after holding trial in presence of the person accused of crimes alleged. From this point of view, delivering unanimous verdict in this case by the Tribunal-2 (ICT-2) is indeed a significant occasion. At all stages of proceedings the prosecution and the defence have made admirable hard work in advancing their valued arguments on academic and legal aspects including citations of the evolved jurisprudence. It predictably has stimulated us to address the legal issues intimately involved in the case, together with the factual aspects as well. We take the privilege to appreciate and value their significant venture.
In delivering the verdict we have deemed it indispensable in highlighting some issues, in addition to legal and factual aspects, relating to historical and contextual background, characterization of crimes, commencement of proceedings, procedural history reflecting the entire proceedings, charges framed, in brief, and the laws applicable to the case for the purpose of determining culpability of the accused. Next, together with the factual aspects we have made endeavor to address the legal issues involved and then discussed and evaluated evidence adduced in relation to charges independently and finally have penned our finding on culpability of the accused.
Now, having regard to section 10(1) (j), section 20(1) and section 20(2) of the International Crimes (Tribunals) Act, 1973[Act No. XIX of 1973] this ‘Tribunal’ known as International Crimes Tribunal-2 (ICT-2) hereby renders and pronouncing the following unanimous judgment.
II. Commencement of proceedings
1. On 18 December 2011, the Prosecution filed the ‘formal charge’ in the form of petition as required under section 9(1) of the Act of 1973 against accused Abdul Quader Molla. After providing due opportunity of preparation to accused, the Tribunal, under Rule 29(1) of the Rules of Procedure [hereinafter referred to as ‘ROP’], took cognizance of offences as mentioned in section 3(2) (a)(b)(g)(h) of the Act of 1973. The Tribunal after hearing both sides and on perusal of the formal charge, documents and statement of witnesses framed six charges relating to the commission of ‘crimes against humanity’ as specified in section 3(2)(a) of the Act of 1973 or in the alternative for ‘complicity in committing such crimes’ as specified in section 3(2)(a)((g)(h) of the said Act . The charges so framed were read out and explained to the accused Abdul Qauder Molla in open court when he pleaded not guilty and claimed to be tried and thus the trial started.
III. Introductory Words
2. International Crimes (Tribunals) Act, 1973 (the Act XIX of 1973)[hereinafter referred to as ‘the Act of 1973] is an ex-post facto domestic legislation enacted in 1973 and after significant updating the ICTA 1973 through amendment in 2009, the present government has constituted the Tribunal ( 1st Tribunal) on 25 March 2010 . The 2nd Tribunal has been set up on 22 March 2012. The degree of fairness as has been contemplated in the Act and the Rules of Procedure (ROP) formulated by the Tribunals under the powers conferred in section 22 of the principal Act are to be assessed with reference to the national wishes such as, the long denial of justice to the victims of the atrocities committed during war of liberation 1971 and the nation as a whole.
3. There should be no ambiguity that even under retrospective legislation (Act XIX enacted in 1973) initiation to prosecute crimes against humanity, genocide and system crimes committed in violation of customary international law is fairly permitted. It is to be noted that the ICTY, ICTR and SCSL the judicial bodies backed by the United Nations (UN) have been constituted under their respective retrospective Statutes. Only the International Criminal Court (ICC) is founded on prospective Statute.
4. Bangladesh Government is a signatory to and has ratified the International Covenant for Civil and Political Rights (ICCPR), along with its Optional Protocol. It is necessary to state that the provisions of the ICTA 1973 [(International Crimes (Tribunals) Act, 1973] and the Rules framed there under offer adequate compatibility with the rights of the accused enshrined under Article 14 of the ICCPR. The 1973 Act of Bangladesh has the merit and mechanism of ensuring the standard of safeguards recognised universally to be provided to the person accused of crimes against humanity.
IV. Jurisdiction of the Tribunal
5. The Act of 1973 is meant to prosecute, try and punish not only the armed forces but also the perpetrators who belonged to ‘auxiliary forces’, or who committed the offence as an ‘individual’ or a ‘group of individuals’ and nowhere the Act says that without prosecuting the ‘armed forces’ (Pakistani) the person or persons having any other capacity specified in section 3(1) of the Act of 1973 cannot be prosecuted. Rather, it is manifested from section 3(1) of the Act of 1973 that even any person (individual or group of individuals), if he is prima facie found individually criminally responsible for the offence(s), can be brought to justice under the Act of 1973. Thus, the Tribunal set up under the Act of 1973 are absolutely domestic Tribunal but meant to try internationally recognised crimes committed in violation of customary international law during the war of liberation in 1971 in the territory of Bangladesh. Merely for the reason that the Tribunal is preceded by the word “international” and possessed jurisdiction over crimes such as Crimes against Humanity, Crimes against Peace, Genocide, and War Crimes, it will be wrong to assume that the Tribunal must be treated as an ‘‘International Tribunal’’
V. Brief Historical Background
6. Atrocious and dreadful crimes were committed during the nine- month-long war of liberation in 1971, which resulted in the birth of Bangladesh, an independent state. Some three million people were killed, nearly quarter million women were raped and over 10 million people were forced to take refuge in India to escape brutal persecution at home, during the nine-month battle and struggle of Bangalee nation. The perpetrators of the crimes could not be brought to book, and this left an unfathomable abrasion on the country's political awareness and the whole nation. The impunity they enjoyed held back political stability, saw the ascend of militancy, and destroyed the nation's Constitution.
7. A well-known researcher on genocide, R.J. Rummel, in his book Statistics of Democide: Genocide and Mass Murder Since 1900, states: “In East Pakistan [General Agha Mohammed Yahya Khan and his top generals] also planned to murder its Bengali intellectual, cultural, and political elite. They also planned to indiscriminately murder hundreds of thousands of its Hindus and drive the rest into India. And they planned to destroy its economic base to insure that it would be subordinate to West Pakistan for at least a generation to come.”
8. Women were tortured, raped and killed. With the help of its local collaborators, the Pakistan military kept numerous Bengali women as sex slaves inside their camps and cantonments. Susan Brownmiller, who conducted a detailed study, has estimated the number of raped women at over 400,000. [Source: http://bangladeshwatchdog1.wordpress.com/razakars/]
9. In August, 1947, the partition of British India based on two-nation theory, gave birth to two new states, one a secular state named India and the other the Islamic Republic of Pakistan. The western zone was named West Pakistan and the eastern zone was named East Pakistan, which is now Bangladesh.
10. In 1952 the Pakistani authorities attempted to impose ‘Urdu’ as the only State language of Pakistan ignoring Bangla, the language of the majority population of Pakistan. The people of the then East Pakistan started movement to get Bangla recognized as a state language and eventually turned to the movement for greater autonomy and self- determination and finally independence.
11. The undisputed history goes on to portray that in the general election of 1970, the Awami League under the leadership of Bangabandhu Sheikh Mujibur Rahman became the majority party of Pakistan. But defying the democratic norms Pakistan Government did not care to respect this overwhelming majority. As a result, movement started in the territory of this part of Pakistan and Bangabandhu Sheikh Mujibur Rahman in his historic speech of 7th March, 1971, called on the Bangalee nation to struggle for independence if people’s verdict is not respected. In the early hour of 26th March, following the onslaught of “Operation Search Light” by the Pakistani Military on 25th March, Bangabandhu declared Bangladesh independent immediately before he was arrested by the Pakistani authorities.
12. The massacres started with program called “Operation Searchlight,” which was designed to deactivate and liquidate Bengali policemen, soldiers and military officers, to arrest and kill nationalist Bengali politicians, soldiers and military officers, to arrest and kill and round up professionals, intellectuals, and students (Siddiq 1997 and Safiullah 1989). In the War of Liberation that ensued, all people of East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religion-based political parties, particularly Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS), Muslim League, Pakistan Democratic Party(PDP) Council Muslim League, Nejam E Islami joined and/or collaborated with the Pakistan occupation army to aggressively resist the conception of independent Bangladesh and most of them committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh. “The workers belonging to purely Islami Chatra Sangha were called Al-Badar, the general patriotic public belonging to Jamaat-e-Islami, Muslim League, Nizam-e-Islami etc were called Al-Shams and the Urdu-speaking generally known as Bihari were called al-Mujahid.” [Source: ‘Sunset at Midday’ (Exhibit-2 written by Mohi Uddin Chowdhury]
13. The Pakistan government and the military setup number of auxiliary forces such as the Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, essentially to act as a team with the Pakistani occupation army in identifying and eliminating all those who were perceived to be pro-liberation, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and Bangalee intellectuals and unarmed civilian population of Bangladesh. “Bangladesh, formerly East Pakistan, became independent in December 1971 after a nine-month war against West Pakistan. The West's army had the support of many of East Pakistan's Islamist parties. They included Jamaat-e-Islami, still Bangladesh's largest Islamist party, which has a student wing that manned a pro-army paramilitary body, called Al Badr.” [Source: The Economist : Jul 1st 2010: http://www.economist.com/node/16485517?zid=309&ah=80dcf288b8561b012f603b9fd9577f0e]
14. A report titled ‘A Country Full of Corpses’ published in SUMMA Magazine, Caracas, October 1971 speaks that “The extermination of the Jewish people by the Nazi regime, the atomic crime of Hiroshima and Nagasaki, the massacre of Biafra, the napalm of Vietnam, all the great genocides of humanity have found a new equivalent: East Pakistan. Despite the world press having supplied a clear exposition of facts, the people do not appear to have raised that at this moment—and again in Asia—millions and millions of human beings face destruction of their life and mother land..................................A pathetic view of the tragedy is given to us by the fact that in a single night in the city of Dacca were killed 50,000 persons by the invading army. Between 26 March—the date of invasion— and this moment, the dead reach more than a million, and every day 30,000 persons leave East Pakistan and take refuge in Indian territory. “ [Source: Bangladesh Documents- Volume II , page 76]
15. Jamat E Islami (JEI) and some other pro-Pakistan political organizations substantially contributed in creating these para-militias forces (auxiliary force) for combating the unarmed Bangalee civilians, in the name of protecting Pakistan. Actions in concert with its local collaborator militias, Razakar, Al-Badar and Jamat E Islami (JEI) and other elements of pro-Pakistani political parties were intended to stamp out Bangalee national liberation movement and to mash the national feelings and aspirations of the Bangalee nation. Fox Butterfield wrote in the New York Times- January 3, 1972 that “Al Badar is believed to have been the action section of Jamat-e-Islami, carefully organised after the Pakistani crackdown last March” [Source: Bangladesh Documents Vol. II page 577, Ministry of External Affairs, New Delhi].
16. Incontrovertibly the way to self-determination for the Bangalee nation was strenuous, swabbed with immense blood, strives and sacrifices. In the present-day world history, conceivably no nation paid as extremely as the Bangalee nation did for its self-determination. Despite the above historic truth as to antagonistic and atrocious role of JEI and other pro-Pakistan political organizations section 3(1) of the Act of 1973 remains silent as regards responsibility of any ‘organisation’ for the atrocities committed in the territory of Bangladesh in 1971 war of liberation.
VI. Brief account of the accused
17. Accused Abdul Quader Molla was born in the village Amirabad under Police Station Sadarpur District- Faridpur in 1948. While he was a student of BSC (Bachelor of Science) in Rajendra College, Faridpur in 1966, he joined the student wing of JEI known as ‘Islami Chatra Sangha’ (ICS) and he held the position of president of the organization. While he was student of the Dhaka University, he became the president of Islami Chatra Sangha of Shahidullah Hall unit. In 1971, according to the prosecution, he organized the formation of Al-Badar Bahini with the students belonging to Islami Chatra Sangha (ICS) which allegedly being in close alliance with the Pakistani occupation army and Jamat E Islami actively aided, abetted, facilitated and substantially assisted, contributed and provided moral support and encouragement in committing appalling atrocities in 1971 in the territory of Bangladesh.
VII. Procedural History
18. At pre-trial stage, the Chief Prosecutor submitted an application before the ICT-1 under Rule 9(1) of the Rules of Procedure seeking arrest of the accused Abdul Quader Molla for the purpose of effective and proper investigation. At the time of hearing it was learnt that the accused was already in custody in connection with some other case. Thereafter, pursuant to the production warrant issued by the Tribunal (Tribunal-1) the accused was produced before the Tribunal (Tribunal-1) by the prison authority and then he was shown arrested as an accused before the Tribunal. Accordingly, since 02.10.2010 the accused Abdul Quader Molla has been in custody.
19. The Tribunal (Tribunal-1), since his detention, has entertained a number of applications seeking bail filed on behalf of the accused and the same were disposed of in accordance with law and on hearing both sides. The Tribunal-2 also allowed the learned defence counsels to have privileged communication with the accused in custody, as and when they prayed for.
20. Finally, the Chief Prosecutor submitted the Formal Charge under section 9(1) of the Act on 18.12.2011, on the basis of the investigation report of the Investigating Agency, alleging that the accused as a member and a prominent organizer of the Al-Badar Bahini (i.e. auxiliary force) as well as a member of Islami Chatra Sangha(ICS) or member of a group of individuals had committed ‘crimes against humanity’, ‘genocide’ including abetting, aiding and for complicity to the commission of such crimes as specified in section 3(2)(a)(g)(h) of the Act of 1973 in different places in Mirpur area of Dhaka city during the period of Liberation War in 1971. The Tribunal (Tribunal-1) took cognizance of offences against the accused having found prima facie case in consideration of the documents together with the Formal Charge submitted by the prosecution. Prosecution was then directed to furnish copies of the Formal Charge and documents submitted there with which it intends to rely upon for supplying the same to the accused for preparation of defence.
21. At this stage, the Tribunal-1, on application filed by the Chief Prosecutor, ordered for transmission of the case record to this Tribunal-2 under section 11A (1) of the Act of 1973. This Tribunal-2 (ICT-2), thereafter, received the case record on 23.4.2012. Earlier, the case was at stage of hearing the charge framing matter. Thus, this Tribunal-2 had to hear the matter afresh as required under section 11A (2) of the Act. Accordingly, the hearing took place on 02 May, 07 May, 08 May, 09 May, 13 May, 14 May and 16 May 2012.
22. Before this Tribunal-2(ICT-2), in course of hearing the charge matter, the learned Prosecutor Mr. Mohammad Ali made his submissions showing his argument favourable to framing charges against the accused, in the light of the Formal Charge together with the statement of witnesses and documents submitted therewith. While Mr. Abdur Razzak, the learned senior counsel appearing for the accused, refuting prosecution’s submission, advanced his detailed submission both on factual and legal aspects and finally emphasized to allow the prayer to discharge the accused.
23. On hearing both sides and on perusal of the formal charge, statement of witnesses and documents submitted therewith this Tribunal(ICT-2), finally, framed six charges by its order dated 28 May 2012 and then by providing due opportunity for getting preparation by the defence Tribunal-2 fixed 20.6.2012 for placing opening statement by the prosecution and with this the prosecution case commenced.
24. Defence preferred an application on 04.6.2012 seeking review of order framing charges on the grounds stated therein. On hearing both sides, the Tribunal modified its order framing charges by an order dated- 14.6.2012 by inserting the words “or in the alternative” in place words “and also for” and before the words “complicity to commit such offence” in all counts of charges.
25. Defence however submitted a list of its witnesses containing name of 965 witnesses together with documents and materials upon which it intended to rely upon as required under section 9(5) of the Act.
26. Thereafter, the prosecution after placing its opening statement as required under section 10(1)(d) of the Act of 1973 started adducing witnesses. However, prosecution adduced and examined in all 12 witnesses including two Investigating Officers. A total 04 exhibits were admitted into evidence.
27. This Tribunal on hearing both sides on an application submitted by the prosecution seeking limitation of defence witnesses rendered an order dated 05 November 2012 limiting defence witnesses to only 06 witnesses, keeping the matter of ‘defence case’ and ‘plea of alibi’ into account. After passing the order dated 5.11.2012 limiting defence witnesses to six the defence however called 06 witnesses including the accused Abdul Qauder Molla who testified.
28. Defence however, started bringing frequent applications on similar matter i.e. seeking permission to adduce and examine more six witnesses. In this process, the defence filed an application seeking re-call of the order limiting defence witnesses. Tribunal rejected it, after hearing both sides by its order dated 12 November 2012. The defence again initiated a delayed application seeking review of order dated 12.11.2012. On hearing both sides Tribunal rejected it by giving a reasoned order dated 26.11.2012. Finally, the defence brought an application seeking permission to adduce and examine six more additional witnesses, after closure of examination of six defence witnesses. The Tribunal rejected it with cost as it appeared to be an application seeking same favour or relief, though in different form.
29. The Tribunal in its reasoned orders on this issue mainly focused on the matter that no specific defence case could have been extracted from the trend of cross-examination of prosecution witnesses excepting the ‘plea of alibi’ and it considered appropriate to allow the defence to examine six witnesses from the list it submitted under section 9(5) of the Act and by a subsequent order Tribunal by relaxing condition permitted the defence to adduce and examine its witnesses ‘preferably’ from the list it submitted by modifying its order dated 5.11.2012 suo moto in exercise of power given under Rule 46A of the ROP and thereby permitted to adduce and examine even one of listed prosecution witnesses. Prosecution duly cross-examined the DWs. Thus the trial concluded on 13.12.2012.
30. Thereafter, prosecution’s summing up of case under section 10(1)(i) of the Act of 1973 was heard for 09 and half hours while the defence placed summing up of its own case by taking about 25 hours. At the stage of summing up of defence case, defence filed an application seeking direction to the museum of Miprur Jallad Khana for production of statement made and archived therein by 03 prosecution witnesses and one defence witness. The Tribunal disposed of the same with its observation that the matter would be taken into notice at the time of its final verdict. In this way on conclusion of summing up cases under section 10(1) (i) of the Act of 1973 the Tribunal-2 kept the matter of delivery and pronouncement of judgment under section 10(1)(j) read with section 20(1) of the Act under CAV.
VIII. Applicable laws
31. The proceedings before the Tribunal shall be guided by the International Crimes (Tribunals) Act 1973, the Rules of Procedure 2012 formulated by the Tribunal under the powers given in section 22 of the Act. Section 23 of the Act of 1973 prohibits the applicability of the Code of Criminal Procedure, 1898 and the Evidence Act 1872. Tribunal is authorized to take judicial notice of fact of common knowledge which is not needed to be proved by adducing evidence [Section 19(4) of the Act]. The Tribunal may admit any evidence [Section 19(1) of the Act]. The Tribunal shall have discretion to consider hearsay evidence too by weighing its probative value [Rule 56(2)]. The defence shall have liberty to cross-examine prosecution witness on his credibility and to take contradiction of the evidence given by him [Rule 53(ii)]. Cross- examination is significant in confronting evidence.
32. The Act of 1973 provides right of accused to cross-examine the prosecution witnesses. The Tribunal may receive in evidence statement of witness recorded by Magistrate or Investigation Officer only when the witness who has subsequently died or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable [Section 19(2) of the Act]. But in the case in hand no such statement of witness has been received. The defence duly cross-examined all the prosecution witnesses.
33. Both the Act of 1973 and the Rules (ROP) have adequately ensured the universally recognised rights of the defence. Additionally, the Tribunal, in exercise of its discretion and inherent powers as contained in Rule 46A of the ROP, has adopted numerous practices for ensuring fair trial by providing all possible rights of the accused. The Tribunal however is not precluded from seeking guidance from international reference and relevant jurisprudence, if needed to resolve charges and culpability of the accused.
IX. Right to Disclosure
34. Article 9(2) ICCPR contains-“Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” This provision compatibly reflects in the Rule 9(3) of ROP that provides-“At the time of executing the warrant of arrest under sub-rule (2) or later on, copy of allegations is to be served upon such person.”
35. Further, Rule 18 (4) of ICT-BD provides “The Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.”
36. Thus, right to disclosure has been adequately ensured so that the suspect person can have fair opportunity to defend his own interest. The Tribunal has allowed privileged communications between the accused and his engaged counsels, in prison as and when prayed for. Defence has been allowed to inspect the ‘Investigation Report’ allowing its prayer. The Rules contain explicit provision as to right to know the allegation after arrest/detention, right to disclosure of charge(s) and to have assistance of interpreter, as contained in the Act of 1973 and as such liberty and rights of the accused have been ensured in consonance with Article 9(2) and 14(3)(a) ICCPR.
X. The Universally Recognised Rights of Accused Ensured by the Act of 1973
37. Fairness is the idea of doing what's best. It may not be perfect, but it's the good and decent thing to do. It requires being level-headed, uniform and customary. Adequate time to get preparation of defense is one of key rights that signifies the fairness of the proceedings. Article 14(3)(b) of the ICCPR states, “To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing.”
38. What we see in the Act of 1973? This provision has been attuned in Section 16(2) of the Act of 1973 that reads, “A copy of the formal charge and a copy of each of the documents lodged with the formal charge shall be furnished to the accused person at a reasonable time before the trial; and in case of any difficulty in furnishing copies of the documents, reasonable opportunity for inspection shall be given to the accused person in such manner as the Tribunal may decide.”
39. The ‘three weeks’ time is given to the defense to prepare. Section 9(3) of the Act of 1973 explicitly provides that ‘at least three weeks’ before the commencement of the trial, the Chief prosecutor shall have to furnish a list of witnesses along with the copies of recorded statement and documents upon which it intends to rely upon. Additionally, what time is considered adequate depends on the circumstances of the case. The ICT-BD is quite conscious ensuring this key right of defense. The Tribunal, through judicial practices, has already developed the notion that each party must have a reasonable opportunity to defend its interests. It is to be mentioned that there has been not a single instance that any of accused person has been denied any of his right to have time necessary for preparation of his defense or interest.
40. It is necessary to state that the provisions of the Act of 1973 [(International Crimes (Tribunals) Act,1973] and the Rules(ROP) framed there under offer adequate compatibility with the rights of the accused enshrined under Article 14 of the ICCPR. In trying the offences under the general law, the court of law in our country does not rely on our own standards only, it considers settled and recognised jurisprudence from around the world. So, even in absence of any explicit provision on this aspect the Tribunal , ethically, must see what happened in similar situations in other courts and what they have done, and take those decisions into account.
41. The ICT-2 guarantees the required procedural protections of the defendant’s right to fair trial both in pre-trial phase and during trial The Act of 1973 and the Rules(ROP) framed there under explicitly compatible with the fair trial concept contained in the ICCPR. Let us have a glance to the comparison below:
(i) Fair and impartial Tribunal: [section 6 (2A) which is compatible with Article 14(1) of ICCPR] ;
(ii) Public trial [section 10(4)] ;
(iii)Accused to know of the charges against him and the evidence against him : [Rule 9(3) and Rule 18(4) of the ROP and section 9(3) and section 16(2) which are compatible with Article 14(3)(a) ICCPR];
(iv) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law: [Rule 43(2) of ROP which is compatible with Article 14(2) ICCPR];
(v) Adequate time of getting preparation of defense: [section 9(3) and Rule 38(2) of the ROP which are compatible with Article 14(3)(b) ICCPR];
(vi) Services of a defense counsel and interpreter: [section 10(3) and section 17(2) which are compatible with Article 14(3)(d) and 14(3)(f) ICCPR];
(vii) Full opportunity to present his defense, including the right to call witnesses and produce evidence before the Tribunal: [section 10(1)(f) and section 17(3) which are compatible with Article 14(3)(e) ICCPR ];
(viii) Right to cross-examine witnesses: [section 10(1)(e)]; (ix) To be tried without undue delay: [Section 11(3) which is compatible with Article 14(3)(c) ICCPR ];
(x) Not to be compelled to testify against himself or to confess guilt: [Rule 43(7) ROP which is compatible with Article 14(3)(g) ICCPR];
(xi) Right of appeal against final verdict: [section 21(1) which is compatible with Article 14(5) ICCPR].
42. The above rights of defense and procedure given in the Act of 1973 and the Rules of Procedure are the manifestations of the “due process of law” and “fair trial” which make the legislation of 1973 more compassionate, jurisprudentially significance and legally valid. In addition to ensuring the above recognised rights to accused the Tribunal- 2 (ICT-2) has adopted the practice by ensuring it that at the time of interrogation defense counsel and a doctor shall be present in a room adjacent to that where the accused is interrogated and during break time they are allowed to consult the accused, despite the fact that statement made to investigation officer shall not be admissible in evidence. Privileged communications between the accused and his engaged counsels have been allowed as and when prayed for. What time is considered adequate depends on the circumstances of the case. The Tribunal-2 is quite conscious ensuring this key right of defense. The Tribunal-2, through judicial practices, has already developed the notion that each party must have a reasonable opportunity to defend its interests. It is to be mentioned that there has been not a single instance that any of accused person has been denied any of his right to have time necessary for preparation of his defense or interest.
43. Therefore it will be evident from comparison of the above procedural account with the ICCPR that the Act of 1973 does indeed adhere to most of the rights of the accused enshrined under Article 14 of the ICCPR. However, from the aforementioned discussion it reveals that all the key rights have been adequately ensured under the International Crimes (Tribunals) Act, 1973 and we will find that those fairly correspond to the ICCPR.
XI. Universally Recognised Rights of Victims
44.The Tribunal notes that without fixing attention only to the rights of
defence responsiveness also to be provided to the rights of victims of crimes as well. Article 2(3) ICCPR reads as below:
Article 2 (3). Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
45.The victims of atrocities committed in 1971 within the territory of Bangladesh in violation of customary international law need justice to heal. Bangladesh considers that the right to remedy should also belong to victims of war crimes. The State has an obligation to remedy serious human rights violations. Bangladesh recognizes Article 8 of the Universal Declaration of Human Rights and Article 2(3) of the International Covenant of Civil and Political Rights which ensure the right to an effective remedy for the violation of human rights.