Friday, December 21, 2012

Reality Check 1: 'Unprecedented Right to Appeal'

Hyperbole, misrepresentation or indeed simple untruths have been made at different times in public statements outside the court by all sides involved in the war crimes tribunal - sometimes by the government, sometimes defense (and indeed supporters of both).

A recent statement by the government law minister, Shafique Ahmed, however has recently caught my attention - and as a result, this post is the first in an (intermittent) series of 'reality checks'.

This one happens to concern a statement made by a government minister, but others will also deal with statements made by the defense or their supporters. recently published an article quoting the law minister as saying
'They (the accused) can appeal (against their punishment) and have the opportunity to defend themselves. It is an unprecedented provision in any such tribunal' (emphasis added)
This statement comes a couple of months after the minster was quoted as describing the International Crimes (Tribunal) Act 1973 as 'the best law in the world' where he again, amongst other things referred to the fact that  'the accused are entitled to file an appeal against conviction,'

The question:
Is Bangladesh's 1973 Act the only legislation dealing with international crimes that contains a right of appeal against conviction?
Let us go through all the contemporary international tribunals and see whether they have rights of appeal:
International Criminal Tribunal for the Former Yugoslavia. The 1993 Statute of the tribunal set up an appellate tribunal and Article 25 sets out the circumstances when an appeal of a judgment is possible.
International Criminal Tribunal for Rwanda: The 1994 Statute of the tribunal sets up an appellate body and Article 24 seats out the circumstances when an appeal of a judgment is possible.
International Criminal Court: The 1998 Rome statute of the International Criminal Court sets up an appellate tribunal and article 81 titled 'Appeal against decision of acquittal or conviction or against sentence' and sets out the details of the right to appeal against conviction.
Special Court for Sierra Leone: The 2000 statute of the tribunal set up an appellate tribunal, and Article 20 sets out the circumstances when an appeal against a judgement is possible.
Ad Hoc Court relating to crimes committed in East Timor: In November 2000, the Indonesian Parliament passed Law 26/2000 incorporating the Rome Statute of the International Criminal Court (ICC) - which as set out above includes the establishment of an appellate tribunal.
Cambodia: Article 9 (new) of 2004 law on the establishment of extraordinary chambers in the Courts of cambodia for the prosecution of crimes committed during the period of democratic kampuchea establishes both a trial court (known as the Extraordinary Chamber) and an appellate tribunal (known as the Supreme Court Chamber) ' Section F of the rules of procedure, titled 'Appeals from the Trial Chamber' sets out in details the manner and circumstances of an appeal.
Special Tribunal for Lebanon: The 2007 Agreement on the establishment of a Special Tribunal signed by the UN and the Lebanese government in 2007 sets up an appellate tribunal and ARticle 26 sets out the ground for appeal.
So The 1973 Act is totally unexceptional in having a right to appeal against conviction.

What the Law Minister may have been alluding to is that neither the accused prosecuted for crimes committed in World War 2 in the Nuremberg Trials (which took place in 1945/6) nor those prosecution in the International Military Tribunal for the Far East (also known as the Tokyo Trials which commenced in 1946) had a right of appeal.

What is true however is that Bangladesh's 1973 Act was the first international crimes legislation enacted with a right of appeal following conviction.

However, all those accused in contemporary tribunals do have a right to appeal.

Moreover, all the contemporary tribunals listed above have a right of appeal of certain decisions made by the trial court not only post-conviction but also in relation to certain decisions, made by the tribunal pre-trial (known as interlocutory appeals) which Bangladesh's 1973 does not provide.

There was a change in the Bangladesh tribunal's rules of procedure which allowed either party to seek a review by the tribunal of a decision which itself has made - but this is very different from an independent court reviewing the decision.

As far as I know (and if I am wrong please someone correct me on this) the Bangladesh tribunal has not overturned or amended a single substantive decision it has made that has come up before it for review before it - which of course is not really that suprising since it made the decision in the first place.

In the style of the Washington Post, I will give 'pinnochios' depending upon the level of inaccuracy in the particular statement - with four pinnochios being the maximum. The statement by the minister was wholly inaccurate, however he was probably meaning to allude to the fact that the 1973 Act was different from the Nuremberg and the Tokyo tribunals. I give the statement three pinnochios


  1. To ensure fair trial there must have appeal provision to an independent court which is absent in the ICC 1973 act. It is bizarre to me how same tribunal is reviewing its decision. No doubt it's a mockery by the name of justice.

    I am quite sure if international community allow this tribunal to go ahead it will be vicious example of human rights violation and other developing countries may take this example in future to hang the opposition if the countries faced any such kind of war trouble.

    I would ask UN or other international bodies to stop this tribunal and take necessary steps to form framework to ensure that war crimes trial must be run at international level to avoid judicial killing.

  2. Being a victim of this Regime, i can give u a small advise! Think twice before awarding 'pinnochios' to ministers of this Regime... Sometimes you are just a 'pinnochio' away from being deported.. Same goes to all foreign jurnos in Bangladesh, particularly the 'critical' one..

  3. As a Bangladeshi I am very much aware of the ongoing drama about this tribunal. Like every other Bangladeshis we all want war criminals free Bangladesh. But what is going on in Bangladesh is nothing but a dirty political game. The present government named this international War Crime Tribunal, but none of its laws complies with the international standard at all. Government is not giving permission to any international lawyer to enter into this tribunal! Government is only trying to abuse opposition leaders, where there are war criminals in the ruling party itself. We strictly want fair trial, not political trial at all.

  4. They killed so you kill. They raped so you rape.They don't deserve any transparency or fair trial. Because didn't do rape in fair way, they ware not transparent while killing. NO meaning such efforts to show is as 'Justice'.