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Denying the Undeniable


International Standards in International Criminal Law
by Toby M. Cadman and Pilar Lovelle Moraleda

Since the establishment of the first Bangladesh war crimes tribunal in 2010, the Government of People’s Republic of Bangladesh has systematically failed to put an end to the disturbing pattern of human rights and due process violations in the International Crimes Tribunal (ICT).

Its inexcusable disrespect for international standards of fairness has turned the ICT into the focus of widespread international criticisms, the list of which is too long to mention here but includes the United Nations, every credible international human rights NGO and a number of respected international jurists. In addition, the involvement of the ICT in alarming scandals that evinced the lack of independence and impartiality of several of its members has deprived it from international legitimacy. Therefore, although it was conceived as a tool of justice and accountability, the ICT has transformed into a tool of political vendetta, show trials and summary executions.

However, the official policy of the Government of Bangladesh has consisted of a blind defence of the legal processes before the ICT and a condemnation of its critics as part of an international conspiracy. It has also denounced its critics for its perceived failures to respect the rights of the victims of the war of liberation. Regrettably, it is the Government that has done a serious disservice to the countless victims, not its critics.

Such is the blindness of the official narrative that it has reached the absurd point to deny the undeniable: in a lecture at the Liberation War Museum, Professor of Law from Australia’s Macquarie University, Rafiqul Islam, argued there was “nothing like one universally accepted international standard for war crimes trials”. He defended that all the standards of war crimes tribunals were “case-specific” and that “[l]ocal realities determine how the laws to conduct the trials are made and how the trials are conducted”. He mentioned differences between the Charters of Nuremberg and Tokyo, and in the judgments of the ICTY and the ICTR to justify his argument.

Law, and its application, is not a static concept; it develops over time and admits a certain degree of flexibility to provide meaningful justice in specific conflicts and situations. International Criminal Law has developed over decades to make it more consistent with the global vision of justice and key principles have evolved to ensure that those who are responsible for serious violations of international humanitarian law are held accountable. This explains the small differences between the different statutes and charters of past international criminal tribunals, most notably in the evolution of definitions of international crimes from Nuremberg almost seventy years ago to the establishment of the first permanent International Criminal Court in The Hague. However, all these processes, perhaps with the exception of Nuremberg and Tokyo, had an untouchable common core that convert their jurisprudence in valuable precedents for future judicial processes and legitimized their work as a source of justice: the respect for universally recognised standards of fairness and due process.

These standards do not only apply to war crimes tribunals but to all processes of criminal law around the world, either nationally or internationally. Although these standards form part of international customary law and could be considered a jus cogens normthe most essential norms of international law, of which no derogation is permitted—, they are also guaranteed in written international treaties that oblige Bangladesh, as any other State Party, internationally, notably in the International Covenant of Civil and Political Rights. Far from being an invention from lawyers and lobbyists, these standards are mandatory norms of international law. They are developed, interpreted and applied by UN human rights institutions, including the UN Human Rights Committee; by abundant cases law from regional human rights courts and monitoring bodies in Africa, Europe, Asia and America; and, undeniably, by courts deciding on international crimes.

For example, in its General Comment No. 32, the UN Human Rights Committee interpreted and developed the international standards of fair trial established in the ICCPR. The Committee determined the basic contents of the concept of equality before courts and tribunals; the meaning of the right to a fair trial; the basic elements of the right to a competent, independent and impartial tribunal; and the importance of the right to review by a higher tribunal. In the same Comment, the Committee also defended that, even in a situation of emergency, trials that could lead to the imposition of the death penalty need to respect the highest standards of fairness: “any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of article 14           

The Committee resolved that the right to a fair trial is “a key element of human rights protection” and serves as “a procedural means to safeguard the rule of law”; therefore, according to this body, Article 14 of the ICCPR contains standards and guarantees that States parties must respect “regardless of their legal traditions and their domestic law”. These standards are essential and indisputable rights and principles that are compulsory and commonly required in every judicial process.

International courts and tribunals also apply these standards. For example, Article 21(1) of Rome Statute establishes that the Court must apply the relevant treaties “and the principles and rules of international law”. Part III of the Rome Statute lists a series of General Principles of Criminal law consistent with those from the ICCPR and the Universal Declaration of Human Rights, such as the principle of non-retroactivity or of individual criminal responsibility. By way of clarification, in Prosecutor vs. Jean-Pierre Bemba Gombo the ICC Pre-Trial Chamber II made specific reference to the “internationally recognized human rights standards” in laying down the evidentiary principles it would follow; and built on the precedents set out by the ICTR and ICTY to analyze and apply the elements of the definition of crimes against humanity.

These standards require time and efforts to be implemented, but their respect is the only way to ensure a fair trial and turn the process into a legitimate expression of truthful justice. Trading-off efficiency for justice is not an option, contrary to what Professor Islam seemed to advocate.

International Criminal Law has developed over decades to make it more consistent with the global vision of justice and key principles have evolved to ensure that those who are responsible for serious violations of international humanitarian law are held accountable.
Defence lawyers do not criticize the absence of specific and high benchmarks of international criminal law in the ICT, but of essential and indisputable rights and principles that are compulsory and commonly required in every judicial process. These standards include the right to be tried in one’s presence, the right to be judged by an independent and impartial tribunal, the presumption of innocence, the principle of ne bis in idem, the prohibition of retroactive application of criminal norms, the right to present witnesses and cross-examine those presented by the other party, or the diligent respect for due process norms in trials that could derive in the imposition of the death penalty.

The denial of the existence of these basic and obligatory standards is such a baseless argument that it could be regarded as the ultimate and desperate intent of the Bangladeshi ruling elite to justify the unjustifiable: the execution of political opponents following deeply flawed trials.

The professor from Macquarie University defined the defence of the war criminals in the ICT as “weak” for raising “the same kind of issues again and again”. As a matter of fact, the weakness of the defence in the ICT is a widely acknowledged fact, but not for the lack of strength of its arguments, but for the constant ostracism from the part of the tribunal and the continuous, superficial and arbitrary rejection of its allegations.

The defence will, indeed, proceed on denouncing the grave human rights violations committed in the ICT: as lawyers they are obliged to protect defendants from the serious violations they are suffering and raise the injustices and flaws of the process during the trial. This should not be characterised as supporting ‘war criminals’ or lobbying against the pursuit of justice. In fact, it would be professionally negligent for the defence not to raise such issues during the process. When it is the judges, prosecutors and members of the government that have brought the process into disrepute, the defence are under an obligation to raise such arguments to ensure that no arbitrary decision is reached by a tribunal of law that lacks the most fundamental principles of independence and impartiality.

Professor Islam repeats in his politicised diatribe that those who criticize the activity of the ICT should “read the verdicts” and check that “[t]here is no drop in standards”, as they are “detailed and comprehensive and have been arrived at after due process of law”. It is accepted that the trial judgments handed down by the ICT and the appeal verdicts handed down by the Appellate Division of the Supreme Court are voluminous and detailed and cover a number of important considerations of international law, albeit getting much of it wrong. Regrettably, however, the abject failing of both judicial organs is the over reliance on writing the history of the 1971 War of Liberation with political argument, rather than addressing the crimes and the evidence.

The recent execution of Ali Ahsan Mohammed Mujahid and Salauddin Quader Chowdhury placed Bangladesh once again under the international spotlight. The criticisms to their trials and sentences did not only come from credible international human rights groups, such as Amnesty International and Human Rights Watch, but also directly from the United Nations Office of the High Commissioner for Human Rights, the U.S. Congress Tom Lantos Human Rights Commission, and several international experts including the former U.S. Ambassador-at-Large for War Crimes Stephen Rapp.

All the reviews and analyses on the judgments of these individuals, and more generally, on all the judgments from the ICT, agree that they were inherently flawed processes in which fair trial and due process standards were completely absent. To suggest that these experts and organizations have issued their analyses and called for the condemnation of the processes without reading the verdicts shows a complete ignorance about the professionalism of these actors and a woeful disrespect for their work.

Professor Islam makes the point, quite rightly, that the international ad hoc tribunals are not without their failings. He points to East Timor as a case in point in which the UN supervised tribunal only tried 88 out of 400 accused before it finally collapsed in 2006. These criticisms are well placed. International tribunals have proved to be expensive, produce few results and do not necessarily promote justice to victims and advance national reconciliation. However, this is an overly simplistic view of a highly complex situation. The ICTY, ICTR and SCSL have all contributed to both the development of international criminal law and national reconciliation.

Professor Islam makes the valid argument that when the funds dry up justice suffers. He states that there has been one judgment at the ECCC in Cambodia and the ICC has delivered one verdict in 12 years at a cost of US$1billion. “Is this what we want [in Bangladesh]?” he quips. Bangladesh, according to Professor Islam, is the only country in the world that has ‘dared’ to conduct war crimes trials on its own. Such a statement is an insult to those judges, prosecutors and lawyers in the former Yugoslavia, for example, that have worked tirelessly on domestic war crimes trials for well over a decade. It also ignores the courageous efforts of human rights advocates the world over that have pushed for national accountability for historic atrocity crimes.

It is worth reminding oneself of the reasons why international tribunals have been established in a number of post-conflict states. Cambodia established a domestic judicial process and arrested a number of accused. However, following widespread allegations of torture, judicial corruption and due process concerns the UN intervened. In Bosnia and Herzegovina courts throughout the territory had been putting individuals on trial since the outbreak of hostilities in 1992. However, due to serious concerns over the independence and impartiality of the judiciary and the politicisation of the process that risked creating further ethnic division, a national court (with international support) was established in 2004 to ensure that the process met international standards – it is now an entirely national institution and is regarded by many as a model for national accountability.

Professor Islam puts a great deal of emphasis on the failures of the East Timor experience. Two points are worth noting. First, most international law specialists would agree that the experience was an unmitigated (and costly) disaster. It serves as an important lesson as will the experience in Bangladesh for many of the same reasons.

Every experiment to deal with atrocity crimes, particularly historical crimes, has presented immeasurable challenges. Some have failed and some have worked. The one point that needs to be repeated is that the removal fundamental rights in the interest of political expediency will do little to contribute to national reconciliation. The process must be fair and must be legitimate. Defendants, if guilty, must be convicted according to the evidence not a political whim. For an experienced jurist to suggest that “local realities determine how the laws to conduct trials are made and how the trials are conducted” is deeply disturbing. In fact, this statement is quite close to stock phrase used by the judges in many of the trials in that “the degree of fairnessare to be assessed with reference to the national wishes such as the long denial of justice to the victims of the atrocitiesand the nation as whole”. This effectively means that standards are to be lowered depending on the will of the people and the thirst for revenge – clearly not a recognisable legal principle.

Professor Islam advances a number of clearly unsustainable arguments and claims to ‘debunk’ the myth of international standards. First, he claims there is no recognisable international standard. Second, he claims that the ‘unfounded’ international criticisms are a result of ‘lobbying’. Third, he claims that involving the UN (and for that matter the international community writ large) would have slowed down the process and proven too costly. Debunking the myths created by Professor Islam is therefore quite straightforward.

First, international standards are contained in a number of treaties (many of which Bangladesh is a State Party) and a number of documents issued by various UN agencies and international bodies that have developed over time. A cursory glance at these would assisted Professor Islam in his presentation.

Second, a number of respected jurists, organisations, political figures and UN agencies have criticised the process based on sound arguments not conspiracy theories and not as a result of lobbying efforts. These individuals and groups have been lobbied by those acting for the defendants, of which I am but one, and by the Government and its supporters, of which Professor Islam is but one. It is telling that those who have spoken out have carefully considered the arguments put forward by both sides and rendered their judgment – a process the trial and appellate judges would have done well to follow in the cases before them. Moreover, it revealing that the Government, and its supporters, have turned on the very individuals and groups that they invited to review the process – such as the UN, International Center for Transitional Justice, IBA War Crimes Committee and former U.S. Ambassador Stephen Rapp. It is very much a case of seeking advice on a legal matter, but only if you tell us what we want to hear.

As for the third issue it has to be said that Professor Islam has an undeniable point and he is quite right to raise it. International tribunals, and particularly UN supervised tribunals, are highly expensive, extremely bureaucratic and painfully slow. However, one must remember that these are highly complex matters that require deep analysis of highly contested allegations and complex areas of international law. Bangladeshi judges, prosecutors and lawyers were, and still are, ill-equipped. It is also worth noting that few, if any, Bangladeshi were unaffected by the liberation war. Hundreds of thousands, if not millions, lost their lives or were forced to leave their homes.

Hundreds of thousands were tortured, raped and suffered lasting psychological damage. It was, and remains, a nation torn apart by a brutal conflict. To separate oneself from such an ordeal and to sit in judgment on those that stand accused is a monumental challenge. That is why, in my opinion, having international judges and prosecutors and international oversight was so important. The UN offered such support before the ICT was formed. Notably, the support was clearly conditioned on the removal of the death penalty and the updating of the legal framework, but the Government declined. The removal of the death penalty was non-negotiable.

Professor Islam concludes his piece by declaring that the ICT will create a 'global standard' by itself. I cannot but agree with this sentence. As I have defended on many occasions, the ICT has created a new ‘low’ in International Justice, a dangerous precedent of politically motivated show trials and summary execution. To that end it has established a new standard in national accountability mechanisms and States such as Guatemala and Senegal, as mentioned by Professor Islam, but also Sri Lanka, Nepal and Palestine, states embarking on their own path of justice and accountability, would do well to remind themselves of the inherent dangers created by the Bangladesh experiment.

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