Monday, December 26, 2011

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.

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.

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