New ordinance brings ICT closer to int'l standards, more changes required

A significant omission in the amendments is the failure to remove the provision allowing the Tribunal to impose the death penalty following a guilty verdictRepresentational image

The ordinance containing the amendments to the International Crimes (Tribunal) Act 1973 has now been published, and those interested in fair and credible trials have both a lot to celebrate, as well as quite a bit to be disappointed in.

However, before looking at both the positive and negative within the new ordinance, it is important to emphasise one significant omission in the amendments– and that is the failure to remove the provision allowing the Tribunal to impose the death penalty following a guilty verdict.

This decision to retain the death penalty will have far reaching negative consequences if the government is seeking international credibility for the trial process.

It believes that the important political constituencies within the country (primarily students and the main political parties, the Bangladesh Nationalist Party and the Jamaat-e-Islami) as well as the popular mood within Bangladesh, is in favour of the death penalty

First, it means that the government and the Tribunal will receive no or very limited assistance from either the United Nations or any European country.

Secondly, the United Nations is unlikely to pass to the Tribunal any evidence that it collected during its fact-finding mission.

Thirdly, many international lawyers who would otherwise assist the prosecution might well be reluctant to take part. Indeed, the decision to keep the death penalty might well impact upon whether Toby Cadman, the special prosecutorial adviser, appointed only recently, remains in his position, though he has not yet commented on this.

Fourthly, some international observers might now decide not to attend.

The government’s justification for retaining the death penalty is that it believes that the important political constituencies within the country (primarily students and the main political parties, the Bangladesh Nationalist Party and the Jamaat-e-Islami) as well as the popular mood within Bangladesh, is in favour of the death penalty. It thinks that any attempt to remove the option of the death penalty would leave it open to the accusation that it is“soft” on the previous Awami League government, a claim that would have very negative political fall-out.

However, it is uncertain that the government’s perception of both the popular or political party mood is accurate and, even if it was, the government has made no attempt to have a public conversation about the negative consequences of keeping the death penalty for these trials and to persuade people that its removal was the best way forward.

There has been talk of the government announcing a death penalty moratorium, but if it wanted to gain the significant benefit that would accrue from doing so, the time to announce this would be now, not some time in the future. And the best way would have been through the ordinance.

The positive changes

Putting the death penalty issue to one side, let’s now look at the numerous positive changes contained within the new ordinance – and then consider what changes the government failed to make.

The first series of positive changes relates to the definitions and application of the offence.

One of the key problems with the 1973 ICT Act was that its definition of the offences of Crimes against Humanity and of Genocide did not match their international accepted definitions. So, in relation to the offence of Crimes against Humanity, the Act did not specify that killings had to be “part of a widespread or systematic attack directed against any civilian population” and that the accused needed“knowledge of the attack”. And in relation to the offence of Genocide, the law allowed the crime to be committed when there was an intention to destroy a “political” group, even though the internationally defined offence did not allow that. Section 4 of the new ordinance now brings the definitions of these offences in line with international law.

The legal changes also have the effect that certain terms within these definitions– such as “enforced disappearance”  and “attack”- are the same as those given within the Rome Statute of the International Criminal Court, and that the Tribunal, in determining how to interpret and apply these offences, will “have regard to” an ICC document called the “Elements of Crimes”. Section 5 also incorporates the language of Article 23 of the Rome Statute which sets out how those accused of crimes can be held liable – by “ordering”, “inciting”, “inducing”, “aiding”, “abetting”, or “assisting” an offence or contributing to the offence whilst “acting with a common purpose” with a group of people.These significant changes not only bring the offences in line with international standards and norms but provide greater certainty and clarity for both the prosecution and defence to understand exactly what needs to be proved for the Tribunal to find a person guilty of the crime.

The second category of changes involve evidence. The 1973 Act had allowed “any evidence” to be admitted without providing any opportunity for either the defence or the prosecution to challenge its admission. Section 16 of the new ordinance allows either the defence or the prosecution to challenge the admissibility of evidence if they believe it has “no probative” value or would create “prejudice … to a fair trial or to a fair evaluation of the testimony of a witness.” This again brings the ICT act further in line with international standards and procedure.

In addition to this, section 12 also establishes an obligation on the prosecutor to “disclose … any evidence” in its possession which “shows the innocence of the accused or mitigates the guilt of the accused or which may affect the credibility of the prosecution evidence”. This is an international standard yet prior to this amendment, the ICT imposed no requirement on the prosecutor to disclose any exculpatory evidence.

The third category of changes involves the provision of new rights to the accused. Section 15 of the ordinance sets out a series of new rights including that of being provided “time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence”. Section 7 also allows the defence to “call additional witnesses or present further evidence at any stage of the trial.”

The fourth category of positive changes involves a cluster of provisions relating to process. One very important new provision, in section 11 of the ordinance, gives the Tribunal the right to “allow foreign counsel to appear before it”. Allowing foreign counsel, with experience in international criminal law, for use by both the defence and prosecution, should have a very positive impact on both the standard of argument and of the trial. Section 10 also allows representatives of “national or international human rights organisations” to attend the ICT proceedings, a significant positive change, as until now that was only intermittently permitted, and it was at the discretion of the Tribunal registrar.

In addition, section 19 of the ordinance also creates new provisions that requires the Tribunal to “take all necessary measures to ensure the safety, security and well-being” of witnesses and allows the victim the “right to participate in the proceedings where they or their families hold a position contrary to that of the prosecution.” Again, all positive.

The negative

The Ordinance has clearly introduced some important new changes, making the 1973 ICT Act more consistent with international standards. Yet – in addition to the issue of the death penalty, discussed above - the new ordinance does, disappointingly, fail to make some additional important changes. Amongst the omissions are these:

-          A proper process of interlocutory appeals: Interlocutory appeals are appeals against judicial decisions before a trial has concluded. All international tribunals have a system to allow such appeals, with some appeals allowed as of right and other appeals permitted following a request to the court.

The ordinance does introduce a new provision that allows a person to make an interlocutory appeal in relation to a conviction for contempt, but it does not allow any other interlocutory appeals against any other judicial decision. So an accused person cannot appeal, for example, the legality of their detentions, alleged bias or inappropriate conduct of a judge, or other decisions involving an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial. Interlocutory appeals need not delay trial proceedings, as they can proceed in parallel. The failure to have a proper system of interlocutory appeals is unsatisfactory.

-          Protecting the rights of those accused in in absentia trials: The ordinance does not amend the provision in the ICT Act to ensure that in absentia trials – that is when a trial takes place in the absence of the accused - provides appropriate protections to the accused. In absentia trials have generally been seen as incompatible with international human rights standards and so there is significant reluctance on the part of international tribunals in allowing them. The only international tribunal that explicitly allows in absentia trials is the Special Tribunal for Lebanon, which provides this important protection: “In case of conviction in absentia, the accused, if he or she had not designated a defence counsel of his or her choosing, shall have the right to be retried in his or her presence before the Tribunal, unless he or she accepts the judgment.” This provision should have been incorporated into the ICT Act to prevent criticism.

-          Superior responsibility: The 1973 Act contains a provision setting out when a “commander, superior officer or leader” is responsible for the conduct of those under their control. However, the Ordinance did not amend this section so that its language is consistent with the wording contained in the Rome Statue. Since, as discussed above, the amended 1973 ICT Act does contain amendments that ensure that the offences and other key terminology in the ICT Act will follow the language of the Rome Statute, it would have made much more sense had this section on “superior and subordinate relationships” been changed in the same way to ensure consistency with other international criminal statutes.

-          The 1973 Act contains provisions that allow the Tribunal to take “judicial notice” of two categories of information – “facts of Common Knowledge” and “reports of the United Nations”. This means that the Tribunal can assume that both are true, without them having to be proved to be so.

There is nothing wrong with the Tribunal taking judicial notice of “facts of common knowledge”, something common to other international tribunals - but in the previous proceedings in Bangladesh under the 1973 Act, the Tribunal made very broad rulings on what were “facts of common” knowledge, without seeking the views of either the defence or the prosecution, and these negatively impacted upon the accused. The new ordinance should therefore have amended the ICT Act to properly define what are “facts of common knowledge” and to ensure that both the prosecution and defence are given an opportunity to present their views to the Tribunal before it rules on the matter.

The provision in the 1973 Act allowing the Tribunal to take judicial notice of “reports of the United Nations” is based on the 1945 Nuremberg Charter but it does not exist in any other contemporary statute establishing international criminal tribunals. This provision could have wide-ranging impact on the impending trials in Bangladesh as the UN will soon be publishing a fact-finding report which will make various conclusions. It could well be highly prejudicial to the defence if the Tribunal was simply allowed to take “judicial notice” of conclusions of the UN report, conclusions which would not have been proven beyond reasonable doubt.

The Government should be congratulated on the many changes introduced in the Ordinance, and these should go far in ensuring the process is fair and credible. But further changes are still required to ensure that this will in fact be the case and to avoid an avalanche of criticism that will undoubtedly come the Tribunal’s way, if it fails to live up to recognisable fair standards.

* David Bergman is a journalist who for many years has written on Bangladesh including on the previous ICT trials. He can be followed on Twitter @TheDavidBergman.

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