Transcript of what US ambassador Rapp said

Two days ago the US Ambassador for Global Justice gave a conference call to a journalist from Prothom Alo newspaper and one from New Age (myself) who were asked to come to the American Centre

It is not clear why so few journalists were called, nor why the statement was not put on the US state department website.

Here is the article in New Age that was based on the call

Rapp however spoke for about 30 minutes, and the detail of what he said is interesting - whether one agrees with it or not.

Below is a transcript of the main part of the conference call. (There is some more, but the line was rather poor, and it will take time to transcribe, and this may not be possible at all.) For those interested to see what Rapp said last time he was in Dhaka in August 2013, see the transcript of that press conference here

On Monday, Rapp started by reading out the following statement over the phone:

‘The United States supports bringing to justice those who committed atrocities in the 1971 Bangladesh war of independence. In doing so, the ICT trials must be free, fair and transparent, and in accordance with international obligations that Bangladesh has agreed to uphold though its ratification of international agreements including the International Covenant on Civil and Political Rights.’  

‘Countries that impose a death penalty must do so with great care, in accordance with a very high standard of due process and respect for fair trial guarantees. It is inevitable that scrutiny will be heightened when a death penalty is pronounced. Therefore judges, as well as authorities having powers of commutation, should exercise great caution before imposing and implementing a sentence of death.’  

As I said during my fifth visit to Bangladesh in August 2014, we have seen some progress but still believed that further improvements to the International Crimes Tribunal process could ensure these proceedings meet domestic and international obligations. Until it is shown that these obligations have been met it is best not to proceed with executions given the irreversibility of a death sentence.’ 

He then allowed some questions to be asked

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.

Implementation of Rapp's Suggestions

In his statement on 28 November 2011, at the end of his third visit to Bangladesh, Stephen Rapp, the US Ambassador for War Crimes-at-large said:

'In March, I made a number of suggestions on how the rules for these trials could be amended to ensure fair and transparent proceedings. Some of these suggestions were incorporated in amendments adopted in June. I regret to say that many were not.'

Lets have a look at which of the March recommendations were incorporated and which were not, and what significance one should give to the government/tribunal's failure to implement them.

1. Change to allow parties to file preliminary motions in the ICT raising issues of jurisdiction
In his letter Rapp said that 'A party to a proceedings before the ICT should be able to raise questions as to whether provisions of the 1973 Act and the 2009 amendments violate international or domestic law as to retroactivity as well [as] other jurisdictional matters'

Article 47A of the constitution (which precludes the possibility of an accused person seeking any kind of remedy from the High Court), the exclusion of the Criminal Procedure Code (which through section 435 allows the sessions court to have some kind of supervisory responsibility over criminal courts) and the application of section 24 and 21 of the International Crimes (Tribunal) Act 1973 (which precludes any order other than conviction from being appealed) prevents any kind of challenge of this kind to be made. In addition section 6(8) of the ICTA states that: 'Neither the constitution of a Tribunal nor the appointment of its Chairman or members shall be challenged by the prosecution or by the accused persons or their counsel.' Effectively, there is no possibility of questioning any aspect of the tribunal's jurisidiction or constituionality.

What happened: no change was made

Evaluation: These kinds of challenges to legislation on 'jurisdictional' grounds in international courts rarely result in a positive response for the accused, that is to say that the courts almost always tend to find that the courts have jurisdiction. And were the accused in Bangladesh able to challenge the jurisdiction of the tribunal, one can be very confident that the the Bangladesh courts would have found against them. So, whilst in principle the accused should certainly have had this right, it is arguable that the Bangladesh law's prohibition against these jurisdictional motions were not in reality that significant.

2. Change to allow parties to have a right to interlocutory appeal from adverse decisions
Section 24 of the 1973 Act states that 'No order, judgement or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any Court or other authority in any legal proceedings whatsoever except in the manner provided in section 21.' Section 21 allows appeal only following conviction.

One assumes that Rapp was effectively seeking some kind of amendment to this section (since changing rules of procedure would not have been enough to circumvent the statutory prohibition)  allowing pre-trial and trial orders (known as 'interlocutory' orders) to be appealed before another court. This could have been before the appellate division of the supreme court or a special court established for this purpose.

In the ordinary courts of Bangladesh, section 435 of the Code of Criminal Procedure provides both the High Court and the sessions court to 'call for and examine any proceeding before any inferior criminal court ....for the purpose of satisfying itself or himself to the correctness, legality or propriety of any finding, sentence or order recorded or passed ...'

The right to appeal interlocutory orders is not a requirement of the International Convention on Civil and Political Rights (ICPPR) - which only requires an appeal following a conviction. However it is part of international legal practice as reflected in all the international tribunals though one that is generally restricted to decisions about (a)  the 'jurisdiction' of the tribunal and (b) decisions which involve 'an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which ... an immediate resolution by the Appeals Chamber may materially advance the proceedings.'

What happened: In response, the tribunal introduced a new rule 36(3) which states that:

'The Tribunal, on its own motion or on the application of either party, may review any of its order including the order of framing charge(s) in the interest of justice.' 

No change to the Act was made. No appeal to another court was provided.

The defence has made a number of review applications under this section, all of which were heard by the tribunal, but none of which resulted in any change to the order under review. The prosecution has not made any review applications.

Evaluation A review application made to the court that issued the very order under challenge is very different from an appeal to a seperate court. In order for the tribunal to reverse one of it orders under review it would have to admit that it made a mistake, and it is difficult to see the tribunal doing in relation to any significant order that it has passed. For a fair review, an independent court must examine the merit of the initial order. Establishing such a system also hs practical advantages, as indeed Rapp mentioned in his letter, by ensuring that all these issues are not raised in appeal following conviction.

Arguably, the failure to introduce an interlocutory appeal process is a significant omission as a number of important tribunal orders have deserved scrutiny by another court.

3. Adoption of a rule requiring the ICT judges to be guided by International Criminal Court document 'Elements of Crimes' when defining offences like genocide or crimes against humanity
Although this was not stated in his letter, one must imagine that the reason for this proposal was particularly due to the manner in which the offence of 'crimes against humanity' was defined in the 1973 Act. This states that crimes against humanity is:

'namely, murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated'

This definition is based on that the offence given in the London Charter of the International Military Tribunal which formed the basis of the Nuremberg trials in 1946. In the Nuremberg judgement itself, the tribunal stated the following:

'With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organised and systematic. The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.' (emphasis added)

From this case, international law has developed the offence of 'crimes against humanity' so that a murder or other crime can only be considered a 'crime against humanity' if it can be shown to be part of 'widespread or systematic' attacks with the accused having 'knowledge' of these attacks.

According to a recent decision by the Extraordinary Chambers in the Courts of Cambodia (ECCC),  as of 1974 - 3 years after the 1971 war - the crimes of murder, rape etc could only become a crime of humanity when the following:

'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.'

In the 'Elements of Crimes' document produced by the ICC in 2000, in order for the offence of murder be considered a crime against humanity, the following elements need to be proved:

1. The perpetrator killed one or more persons.
2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.

What happened: No change. In its charge-framing order of 3 October, the tribunal stated:

'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 whether the International Crimes Tribunal of Bangladesh not have any such obligations to do so. However the Tribunal may take into account jurisprudential developments from other jurisdictions should it feel so required in the interests of justice.

This ruling seems to suggest that the tribunal will strictly apply the wording of the 1973 Act.

Without the additional elements requiring that the crime of murder or rape be in the context of widespread or sysmatic attacks, it appears that the tribunal can convict a person for the offence of crimes against humanity simply by proving the offence of murder or rape, and nothing else.

Evaluation: There is nothing to stop Bangladesh courts prosecuting any person for murder or rape, but then the offence for which they are prosecuting should not be called 'crimes against humanity, as that is a specifically understood international offence.

Since this is a tribunal prosecuting 'international' crimes, at the very least one would expect the tribunal to use international law definitions.

However, as quoted above, in its 3 October order, it appears that the tribunal does not consider there to be any kind of problem with the current wording of the offence of crimes against humanity as set out in the Act, stating, that 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.' However, the tribunal provided no legal support for this view. Indeed, the tribunal chose to ignore the most relevant recent ruling on this issue relating to the war crimes trials in Cambodia  (see above) though it had been made aware of the decision through an earlier defence application.

It is important to recongise that the call for refining of the offence of crimes against humanity is not concerned with arguing that elements of the crime determined years after the event should be incorporated into the offence; only that the elements of the international offence of crimes against humanity, as it then existed in 1971, should be part of the offence.

If the tribunal does not take these issues into account, it would appear that the court would be in breach of an important element of the International Civil and Political Rights Convention (which Bangladesh is a signatory) which only allows individuals to be prosecuted for international crimes when they are part of 'the general principles of law recognized by the community of nations.' at the time they were committed.

The tribunal has stated (following Bangladesh Supreme Court decisions) that it is not obligated to follow the ICCPR as it has not been incorporated into Bangladesh law. This may well be the correct legal position in Bangladesh; however it does set the court in conflict with a pretty fundamental principle of international law which may well attract criticism from outside the country.

4. A rule stating that those under investigation will be entitled to rights set out in part 3 of the International Covenant on Civil and Political Rights.
These are the rights that are set out in articles 6 to 27, however only section 9, 14 and 15 are particularly relevant. It should be noted that these articles have to be read with the case law of the UN Human Rights Committee which is the monitoring body of this convention.

What happened. The tribunal introduced into the rules of procedure, rules 43(2) to (7) which engage with some of these issues:

(2) A person charged with crimes as described under section 3(2) of the Act shall be presumed innocent until he is found guilty.
(3) No person shall be tried twice for the same offence described under section 3(2) of the Act.
(4) The accused shall be entitled to a fair and public hearing and to engage his counsel at his choice who is legally authorised to appear before this tribunal.
(5) The accused shall be tried without undue delay.
(6) No accused shall be punished without giving him an opportunity of being heard.
(7) No accused shall be compelled to testify against his will or to confess his guilt.

It did also bring in some new bail provisions (see 5 below). And the 1973 Act had already been amended prior to the establishment of the tribunals to include section 6(2)A that states that the tribunal should be 'independent and fair'.

In its 3 October decision, the tribunal stated: 'Regarding submission on Article 14 and 15 of the ICCPR we are of the view that by and large every aspect of article 14 of the ICCPR is converted by the Act and its Rules of Procedure.'

Evaluation: It is correct to say that many of the rights set out in Article 14 have been introduced into either the Act or rules - though significantly there is no remedy to any court to ensure that they are complied with. However, at the same time a number of the obligations in article 14 have not been included.

One such example is the right for the defence to receive from the prosecution any exculpatory evidence - that is to say evidence that the prosecution may have found which tends to exonerate the accused. The Human Rights Committee has ruled that this is required as part of the obligations in article 14(3)(b) 'To have adequate time and facilities for the preparation of his defence'. This obligation  is not part of the 1973 Act or its rules and the Tribunal has just recently specifically denied that right to the defence.

The fact that the prosecution may have obtained information that would suggest that an accused may not be guilty of a particular offence, and not provided that information to the defence is considered quite a serious defect amongst international lawyers. However, in Bangladesh (if not South Asian) jurisprudence, disclosure by the prosecution of evidence supportive of the defence, is unheard of. Whether or not this is a sufficient excuse for the government/tribunal depends upon ones view of whether common domestic practice trumps international standards.

There is also the issue of the adequacy of time for the preparation of the defence. After Rapp's letter, the tribunal introduced new rule 38(2) which states that, 'An accused pleading not guilty will get at least three weeks time for preparing his defence.' This rule may not directly breach article 14(3)(b) in that the rules allows the tribunal to provide the defence an adequate period of time to prepare itself- but the fact that the rule gives the tribunal the power to only give the defence three weeks is clearly problematic. In the case of Sayedee, the tribunal, was going to start the trial 26 days after Sayedee pleaded (30 October),  and it was only due to very earnest arguing by defence lawyers on a number of different occasions, that the tribunal delayed the start of the hearing of testimony for a further six weeks (7 December). Whether nine weeks would be considered a sufficient period of time of period to allow the defence to prepare itself when the accused is facing 20 counts of crimes against humanity/genocide is very questionable. However, it should be noted that the defence did receive all the prosecution evidence at the end of July, so whilst the defence did not at that stage know all the exact counts that the accused would face, they were able to start preparing their defence to some extent from that time.

5. Introduce new rules regulating detention and bail that reflect those in other international courts.
This rule was suggested as there were no clear rules about the provision of bail.

What happened: The tribunal did make some important changes. It introduced a new rule
as 9(5) and 9(6) stating that:

“(5) If an accused is in custody during investigation period, the investigation officer shall conclude the investigation within one year of his arrest under the Rules. In case of failure to complete the investigation as specified above, the accused may be released on bail subject to fulfillment of some conditions as imposed by Tribunal. But, in exceptional circumstances, the Tribunal by showing reasons to be recorded in writing may extend the period of investigation and also the order detaining the accused in custody for a further period of six months.
(6) After every three months of detention of the accused in custody the investigation officer through prosecutor shall submit a progress report of investigation before the Tribunal on perusal of which it may make a review of its order relating to the detention of the accused.”

It also introduced new rule 34(3):

“At any stage of the proceedings, the Tribunal may release an accused on bail subject to fulfillment of some conditions as imposed by it, and in the interest of justice, may modify any of such conditions on its own motion or on the prayer of either party. In case of violation of any of such conditions the accused may be taken into custody cancelling his bail.”

Evaluation: The new rules introduced were important as it placed detention and bail on a clear legal footing, and in effect complied with Rapp's suggestions.

The problem however has been although the new rule 9(5) stated that an accused should only be detained after a year of investigation 'in exceptional circumstances', detention has continued after one year without the tribunal providing any reasonable explanation as to why the situation has become 'exceptional'. (see this). This appears to be an example where the tribunal has introduced a new purportedly rule apparently in favour of the defence, but then, arguably, fails to properly apply it.

6. Adoption of rules that would provide suspects being questioned rights similar to those provided at international tribunals.
In his letter Rapp specifically mentioned the following:

'(1) A specific notice of rights to be given to a suspect or accused before questioning in a language the person speaks or understands; 2) for the assistance of counsel unless waived; 3) for the electronic recording of the questions and answers ... 5) and for the exclusion of evidence 'obtained by methods which case substantial doubt on its reliability or its admission is antithetical to and would seriously damage the integrity of the proceedings.'

What happened: The tribunal did not introduce any new rules specifically on the matters proposed by Rapp, but it did create a new rule 56(3) which stated that:

“(3) Any statement made to the investigation officer or to the prosecutor in course of investigation by the accused is not admissible in evidence except that part of the statement which leads to discovery of any incriminating material.”

Evaluation: It is important first to appreciate that in Bangladesh law there is no right for any suspect to be questioned with a lawyer present. Such practice is almost unheard of not only in Bangladesh but also throughout South Asia. It is this practice of course which results in allegations of the widespread use of torture by the police in Bangladesh. However, that being said, it is important to appreciate that the law, at the same time, does not allow any statement made in police custody to be used as evidence in a trial. So statements made to the police are not admissible.

What the tribunal has done is to introduce a number of practices into the process of interrogation which are not ordinarily part of Bangladesh legal practice. These are: A lawyer and doctor are allowed to be in a room next to the place where the interrogation is taking place and are allowed to see the accused midway through the interrogation; and the tribunal is only allowing interrogation to take place one day at a time (between 9 to 5pm). Both of these practices have been introduced to reduce the risk of torture. The tribunal has also ruled that evidence collected during interrogation would not be used as evidence - though it subsequently did state in the rule above, that 'part of the statement which leads to discovery of any incriminating material' can be admissable (though it is not clear how this provision will play itself out.)

Whilst good practice would require a lawyer being present, the absence of a lawyer is much less significant when the evidence collected during it is not admissible.

7. Disclosure by prosecutor of exculpatory evidence to the defence
This has been discussed in point 5 above in relation to the adoption of ICCPR.

Evaluation: This has not been adopted by the tribunal

8. Adoption of rule clarifying presumption of Innocence and need to prove offence 'beyond reasonable doubt'

These have been included in the new rules. See point 5 above.

9. Adoption of new rules relating to dealing with alibis

The tribunal was concerned about rule 51(1) which reverses the burden of proof in relation to alibi evidence. This states that:

'The onus of proof as to the plea of ‘alibi’ or to any particular fact or information which is in the possession or knowledge of the defence shall be upon the defence.'

It proposed that the tribunal should deal with alibi evidence in line with the International Criminal Court.

What happened: the tribunal amended its rule to some extent by creating a new rule 51(3) which states that:

'Mere failure to prove the plea of alibi and or the documents and materials by the defence shall not render the accused guilty.”

Evaluation: We will have to wait to see how trial deals with the issue in the course of the trial.

10. Looking to international case law for assessing reliability of evidence
In his letter Rapp said that section 23 of the 1973 Act which allows any evidence to be admitted as long as the tribunal considers it to have 'probative' value' was reflected in similar legislation. However he stated that different international tribunals had developed principles and made decisions concerning admissibility of evidence that the tribunal could 'look to'.

What happened: Nothing specific but October 3rd charge framing order does gives the tribunal an opportunity to consider this case law.

Evaluation: We will have to wait to see how the trial develops

11. Adoption of Rules allowing witness protection

The tribunal has done this. 

12. Participation of Foreign Counsel
Rapp stated that, 'The field of international crimes is highly specialised and the participation of the foreign counsel particularly those who have litigated in international and hybrid courts and tribunals is very important to ensure that uniform or generally agreed standards are observed in practice.' It also said that visas should be provided to foreign lawyers

The original rule 42 of the ICT rules of procedure states that the tribunal can permit the appearance of foreign counsel but only on condition that the Bangladesh Bar Council permits. Bar Council rules are however interpreted by the Bar Council to mean that only Bangladesh citizens can be heard by the courts.

As the tribunal must have known at the time of drafting it, its won rule was very contradictory - giving the appearance of a right to foreign counsel, but then imposing a condition that could not be met!

What happened: The tribunal did not do anything

Assessment: Whilst the defence should be allowed to use counsel of their choice - this is generally considered to mean counsel within their own bar association rather than international counsel. However, since this is a tribunal dealing with international crimes - and there are no lawyers in Bangladesh with experience of dealing with these crimes - there is an objective basis for arguing that the defence should be able to have foreign counsel appearing for them. It is also the practice in all of the UN sponsored supported war crimes tribunals. However, if the tribunal decided that international lawyers cannot appear before it, one would have hoped that they would be allowed to assist local lawyers in court - but the government has prevented this from happening by refusing them visas, and it is not clear whether the tribunal would have allowed this anyway.

The Bangladesh lawyers continue to be able to work closely with the international lawyers and are clearly are themselves providing an effective defence to their client. So whilst the decisions of the government and tribunal are I would argue highly problematic, at the same time it is is also the cause that the accused continues to be able to get an effective defence - though no doubt they would get a better one if the international lawyers were allowed into the country.

Rapp Statement on third Dhaka visit

Earlier today (28 November 2011), US Ambassador-at-large for War Crimes, Stephen Rapp gave a significant statement in Dhaka about the Bangladesh International Crimes Tribunal.

Below is the text he read out.

Along with my comments on this, the additional comments he made in response to questions, some of which are also important, will shortly be put up on this blog in a different post.

This is my third visit this year to Bangladesh to learn about your International Crimes Tribunal and to offer ideas to ensure that the trials it holds will be fair and open.

I know of the horrible crimes committed in the country in 1971-- of the hundreds of thousands of victims who were murdered and raped, of the pain inflicted and the property destroyed. The victims of these crimes deserve justice, and those accused of these acts deserve trials where they can test the evidence and present witnesses on their own behalf. Those who are innocent should be found not guilty and be freed. Those who are responsible for these crimes should be found guilty and punished. Given the historic importance of these trials to Bangladesh, the region, and the world, the proceedings should be conducted in a manner that is open and accessible to all.

In March, I made a number of suggestions on how the rules for these trials could be amended to ensure fair and transparent proceedings. Some of these suggestions were incorporated in amendments adopted in June. I regret to say that many were not.

Now the first trial has begun with the opening statements of the prosecution last week, and with witnesses due to begin testifying on December 7.

The focus of my present visit is on how the International Crimes Tribunal will conduct these trials. The statute and the rules are in place; the question now is how they will be interpreted in actual practice. Much can still be accomplished to ensure that justice is done and is seen to be done in these historic proceedings.

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.

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.

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.

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.

These trials are of great importance to the victims of these horrible crimes. What happens here will send a message to others who would commit these crimes anywhere in the world that it is possible for a national system to bring those responsible to justice.

I am here because the people of the United States wish to help ensure that this is a process that is fair and transparent. We will continue to work with all those involved in this process to achieve justice in these historic trials.

Changes to Procedural rules

The registrar of the International Crimes Tribunal has just released the new amendments to the ICT's Rules of Procedure which were gazetted on 28 June.

If follows a lot of advice from Stephen Rapp, US War Crimes Ambassador at Large, Human Rights Watch and International Centre for Transitional justice (see blog, April 2011)

You can see the new rules for yourself by downloading them from there.

You can download the original July 2010 rules here and the first set of amendments made in October 2010 here

Key points in amended rules seem to be:
- new bail regime, specifically provision in which a detained person pending investigation should be released on bail after one year if investigation is not completed except in 'exceptional circumstances.' (section 4 and 10)
- new right for lawyer of accused to be present before a magistrate if he or she is making a confessional statement, though they cannot say anything. (Section 6: NB: This right does not exist in current Bangladesh law).
- provision to allow tribunal to review any of its own orders. (Section 7: Though note this is not an appeal to a separate appellate court)
- provision stating that 'An accused pleading not guilty will get at least three weeks time for preparing his defence.' (section 11)
- provision that states that a person charged with an offence 'shall be presumed innocent until he is found guilty.'(section 12)
- a provision that gives the right to to a defendant to 'engage his counsel as his choice who is legally authorised to appear before the tribunal. (Section 12: NB: since the lawyer has to be legally authorised this does not effect the existing rule relating to foreign counsel which states that any foreign lawyer has to get the permission of the Bar Council which has stated that it is not legally able to allow non-Bangladeshi counsel to appear.)
- a provision that makes clear that the prosecution must prove its case 'beyond reasonable doubt' (section 16) , and altering the existing rule on alibi evidence ensuring that a 'mere failure to prove the plea of alibi ... shall not render the accused guilty. (section 17)
- a clarification on when statement given in the course of an interrogation of an accused can be used as evidence. Section 20 states:

'(3) Any statement made to the investigation officer or to the prosecutor in course of investigation by the accused is not admissible in evidence except that part of the statement which leads to discovery of any incriminating material.'

(This seems to be quite a shift from what the Tribunal has stated numerous times in court and as part of one ruling, as part of its justification that no lawyer need be present during an interogation, that nothing said during an interrogation can be used as evidence.)
- power given to the tribunal to issue orders to ensure protection of witnesses and victims (section 21)

Are there any other key provisions that I have missed? (please comment)

Too soon to make any clear judgment on this, but it does seem at first glance that whilst some important developments have taken place through this amendment, these amendments are far from what Rapp, Human Rights Watch and other international lawyers have argued are necessary.

Ambassador Rapp and the ICTJ

In the last two weeks the government has received two important letters relating to the issue of standards of the International Crimes Tribunal.

The most significant of the two letters is the one dated 21 March 2011 that was sent by Stephen Rapp, US Ambassador at large for War Crimes. It was addressed to both the Law minister and the Foreign Minister and was hand delivered to both of them by Nicholas Dean, the US embassy’s deputy chief of mission, and Robert Gerardi, an official of the US department of justice on Tuesday 12 April.

Rapp visited Bangladesh on the invitation of the Bangladesh government in January 2011 and this letter is a response to that visit. See this page for material on the January visit.

Clearly a lot of work has gone into putting together this letter, which focuses on changes to the Tribunal Rules of Procedure, which can be changed by the Tribunal itself and therefore can be done without the government's involvement.

An article on the letter has been published in today's New Age, 16 April 2011: "Law minister responds to US proposal for ICT rule changes".

A scanned copy of the full letter can be downloaded here.

And the appendixes linked to the letter can be downloaded here

The second letter, less significant than Rapp's but still important, is one sent by the International Centre for Transitional Justice, dated 15 March 2011. In the context of concerns about the the law governing the Tribunal, it offers its assistance to the government.

An article on the letter was published on 8 April 2011: "http://newagebd.com/newspaper1/frontpage/14653.html"

A scanned copy of the full letter can be downloaded here.

The ICTJ wrote a briefing about the tribunal in July 2010.

Prior to this, in February 2010, the UK All Party Human Rights Group sent a copy of legal advice on the adequacy of the International Crimes (Tribunal) Act 1973 (as amended, ICT Rules of Procedure had not been drafted at this point) that it had obtained from the the War Crimes Group of the International Bar Association to the government. This can be downloaded here

And in July 2009, Human Rights Watch had sent a letter to the prime minister on the subject of necessary changes to the 1973 International Crimes (Tribunal) Act. See here

Some articles on this, can be seen here: "War crimes act needs reform" and here: "War crimes law 'falls short'"

An interview I did with the law minister in early August 2010 (just after the Tribunal had started its hearings) on the issue of standards, can be seen here: 'The Tribunal will meet international standards'

Stephen Rapp's visit to Bangladesh

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

Of course whether the government/Tribunal does so, only time will tell. 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).

The law minister is quoted in the media as saying that the changes proposed are 'minor' - but some quite significant changes are being suggested. Hearings questioning jurisdiction of the tribunal, appeals against interlocutory Tribunal decisions, presence of lawyers during questioning of suspects, disclosure of exculpatory evidence by the prosecutor etc will bring about quite substantial changes to the current process, and also - in some cases - quite a change to the legal culture.

It may not be straightforward to bring these into effect - but it is in the long term interest of the government and those seeking a credible process that it does make them.

Here are some links to articles I have written about the Rapp visit:
- US Ambassador for War Crimes Due in Dhaka, 29 Nov 2010, New Age
- Bangladesh responds to criticism of its plans to try war criminals, 16 Dec 2010, Economist Magazine
- Seeking Justice that Bangladesh can take pride in, 10 Jan 2011, New Age
- US envoy to advise rule changes, 14 Jan 2011, New Age
- Rapp to advise minister about genocide definition, 21 Jan 2011, New Age. The full interview I did with Stephen Rapp was published in New Age's magazine Extra, but it is not accessible on the website. You can however download the interview here.

In addition, here is the transcript, released by the US embassy, of the press conference Rapp gave on 13 January 2011