NINE BEDFORD ROW INTERNATIONAL

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The Rome Statute of the International Criminal Court, Complementarity and National Prosecutions: The International Crimes Tribunal Bangladesh
By Toby M. Cadman1

This year has seen the ten-year anniversary of the International Criminal Court, the issuance of the first judgment in the case Thomas Lubanga Dyilo, the appointment of a new Chief Prosecutor, Fatou Bensouda of Gambia, and over the course of the last twelve months a number of new State Parties including Cape Verde, Maldives, Guatamala, Philippines and Tunisia have joined the international club. The jury is still out on whether these historic landmarks in international criminal justice will reinforce the principle that a permanent centalised judicial institution is the proper response to a system of justice and accountability involving atrocity crimes, particularly when the superpowers of the United States of America, the Russian Federation and the Peoples Republic of China continue to enjoy a one-way relationship with the court via their position as Permanent Members of the United Nations Security Council, but at the same time declining to ratify the jurisdiction of the court. The question therefore inevitably emerges as to whether a centralised justice institution on the international level that offers a system of universally accepted norms, and adopted by a majority, is fundamental to the aspirations of global justice or whether decentralized local justice systems offer greater prospects for the future. It is right to concede that there has been, over the course of the past decade, much debate over

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Toby M. Cadman is a Member of Nine Bedford Row International (http://www.9bedfordrow.co.uk/international-

whether justice is better delivered at the local level where trials are held in the very communities where the crimes occurred or whether States in post-conflict transition, most commonly governed by the winning force, are ill-prepared to hold the trials of their opponents, most commonly the losing party, in a fair and transparent manner. The debate is purely subjective and largely case specific. Regrettably, there is no blueprint that can easily be transposed to any given situation. There are many examples to call on and arguably there are pros and cons for each argument. The internationally supported domestic Bosnian War Crimes Chamber is considered by many to have had relative success, at least in theory, whereas the internationally sponsored ad hoc tribunals of Sierra Leone, East Timor and Cambodia are considered by many to have been a costly, but necessary, mistake. The success benchmark is dependent upon a number of considerations including productivity, cost and overall contribution to development of principles of international criminal justice. The Bosnian War Crimes Chamber, for example, operated on less than 10% of the annual budget of the International Criminal Tribunal for the Former Yugoslavia and the former exceeded the latters productivity in its first 3 years of operation. However, it was also characterised by internal political disputes and was not considered competent to deal with senior military and civilian leaders such as Dr. Radovan Karadzic and General Ratko Mladic. Accordingly, whilst national and regional tribunals often dispense justice quicker and cheaper, they do not necessarily possess the credibility and legitimacy to put on trial senior leaders in an independent and impartial environment. The permanent International Criminal Court in The Hague was established to change all that with a system of complementarity that seeks to build capacity at the local level rather than adopt the more imperialistic approach adopted by the temporal jurisdiction tribunals such as the Former Yugoslavia and Rwanda. To date the ICC has focused on The Democratic Republic of Congo, Sudan, Kenya, Ivory Coast and Libya. Its principle of complementarity remains an enigma; however, as the President of the ICC, Judge Sang Hyun Song, declared in 2010 if Bangladesh ratifies the Rome Statute, it would get technical assistance from the International Criminal Court in holding trial of the 1971 war crimes. Judge Song went on to state that the ICC was based on two principles: non-retroactivity and complementarity. These principles meant that the ICC was a court of last resort and so perpetrators had to be tried through the national legal system first. Only if the national courts failed, then the ICC could step in. It is unclear whether failure is the inability or unwillingness to initiate a judicial process or whether it means that the process initiated fails to adhere to the spirit of the Rome Statute and the practice of the ICC. One judicial process that appears to have slipped through the cracks is the International Crimes Tribunal in Bangladesh; an institution that is international in name only. This is a purely

domestic tribunal in that it operates without international support or foreign funding. It operates without international assistance by design. Offers for support from the United Nations and other international organisations have been summarily dismissed and often criticized as unwarranted meddling in the internal affairs of a sovereign nation. However, this is a judicial process that risks setting a very dangerous precedent in an extremely volatile part of the world and is simply crying out for international intervention. The international community that holds justice at the heart of accountability and peace owes the people of Bangladesh, its diaspora, and its neighbours, a process that meets universal standards aimed at bringing a just resolution to the many victims of the 1971 War of Liberation. It is a tragedy that justice has been delayed for more than 40 years, but without urgent international intervention justice will be denied once again. Recently, H.E. Ms. Tiina Intelmann, President of the ICC Assembly of State Parties stated: joining the Rome Statute has become part of the acquis of international law: a key way for any State to demonstrate its commitment to the fight against impunity in a meaningful way. It is clear that this commitment must mean more than mere membership. It should be recalled that the law of treaties obliges states from refraining from acts which would defeat the object and purpose of the treaty until they declare that they do not intend to become a party to the treaty (see e.g. Article 18 of the Vienna Convention on the Law of Treaties). In this regard, it should be recalled that Bangladesh joined the International Criminal Court as the 111th state party in 2010. It is therefore bound by the Statute of Rome and whilst any trials arising out of the 1971 War of Liberation falls outside of its jurisdiction ratione temporis, it remains bound by acts which would defeat the object and purpose of the Statute. Bangladesh is a case in point of a unique situation whereby a state party to the Rome Statute, has initiated a judicial process that falls outside of the temporal jurisdiction of the ICC and is fundamentally at odds with the standards of due process that lie at the very centre of the permanent court; this would seemingly qualify as acts which would defeat the object and purpose of the Statute. The question must be whether the Assembly of State Parties of the ICC has a duty towards its members to ensure that individual state parties adhere to universally recognized standards and that any failure capable of bringing the ICC, as an institution, into disrepute must be addressed with sufficiently broad punitive measures, including suspension or expulsion. If the ICCs system of complementarity is to serve any meaningful purpose, as the President of the ICC Assembly of State Parties alludes, then the duty of States towards the ICC must be reciprocal. With these thoughts in mind, on 21 November 2012, the International Criminal Court Assembly of State Parties held a lively debate on the Bangladesh International Crimes Tribunal (hereinafter: Tribunal) and its responsibilities towards the ICC at the World Forum Centre in The Hague.

The event, hosted by No Peace Without Justice (http://www.npwj.org/ICC/11th-ASP-ICCNPWJ-convenes-side-event-The-Bangladesh-International-Crimes-Tribunal.html) witnessed, for the first time since the establishment of the International Crimes Tribunal, Bangladesh in March 2010, representatives from the Government, Defence and Civil Society speaking about the status of the proceedings, the role of the international community and the role of civil society in ensuring that the culture of impunity that has pervaded Bangladeshs politics for more than forty years is brought to an end. It was noted during the two-hour long discussion, that the Tribunal has come under increasing attack from many quarters, including the United Nations Working Group on Arbitrary Detention, United Nations Special Rapporteur on the Independence of Judges and Lawyers, United States Ambassador-at-Large for Global Criminal Justice, Stephen J. Rapp, Human Rights Watch, No Peace without Justice, Amnesty International, the International Bar Association War Crimes Committee, and the International Center for Transitional Justice for its perceived failure to comply with universal standards of transparency and due process. The event, chaired by Niccolo Figa-Talamanca, Secretary-General of NPWJ, one of the founding members of the Coalition of the International Criminal Court, hosted A.K.M. Saiful Islam from the Bangladesh Prosecution Section, Mr. Rayhan Rashid from the International Crimes Strategy Forum (http://www.icsforum.org) and Oxford University, Dr. Ziauddin Ahmed, from the Center for Bangladesh Genocide Studies, and Ms. Schona Jolly from the Bar Human Rights Committee of England and Wales. I spoke on behalf of the defence. Niccolo Figa-Talamanca opened the session and briefly spoke about the Bangladesh Tribunal. At the outset he made clear that this did not concern an international tribunal, despite its name, and that it was not to be confused with the ad hoc tribunals or the permanent International Criminal Court. This was a domestic court that was established under national law to deal with crimes of an international character in a domestic legal setting. Mr. Figa-Talamanca then spoke of the principle of complementarity under the Rome Statute and that the ICC was very much a court of last resort. The emphasis was placed on the need for national judicial institutions to prosecute international crimes under national law in accordance with the principles enumerated under the Rome Statute. The next speaker was Prosecutor A.K.M. Saiful Islam who started his presentation by requesting the audience to respect the many victims of the 1971 War of Liberation by standing for one minutes silence. Prosecutor Islam then gave a brief presentation of the Tribunal, its history and formation. Concerning the legislative framework, Prosecutor Islam stated that the International Crimes

(Tribunals) Act 1973 provided for equality of arms by reference to the bail provisions, which he claimed other international tribunals did not have in their statute, review provisions that permitted for the review of the Tribunals decisions, the appointment of High Court judges, and the appeal procedure to the Appellate Division of the Supreme Court. Prosecutor Islam then went through the Tribunals procedures, focusing on victim and witness protection, suspect interrogation, all of which, in the learned prosecutors view, meets international standards. In particular, the Prosecutor made a highly misleading statement that an accused person has the right to a lawyer to be present when interrogated. The learned prosecutor stated that the proceedings were open and the media were covering the proceedings. Of note, the Prosecutor made the suggestion that his office was treated like the proverbial stepson and the Tribunal acted in a defence-friendly manner. I spoke as a representative of the defence and at the outset made the position clear that this process bore no resemblance to a justice institution. It is not an international tribunal nor, due the wholesale abandonment of fundamental rights, is it a domestic court within the ordinary meaning. I set out in detail the concerns raised by the defence including, inter alia, lack of transparency, discriminatory intent of the legislation by targeting only one side of the conflict, lack of clear definitions of crimes, absence of rules of disclosure and investigations being conducted under a cloak of secrecy. It was stated in unambiguous terms that not only was this not a model of justice, it was in fact setting a very damaging precedent and would set back international criminal justice several decades. It is, in my view, nothing short of South East Asias own Guantanamo. I made it quite clear that I do not consider that this is a process that can properly be described as a justice institution and I do not believe it has the legitimacy or credibility to serve as any model of international justice. The most fervent example of this is the recent abduction of a defence witness. This witness was previously listed as a prosecution witness who the Prosecution several months ago had misrepresented to the Tribunal was no longer available and possibly in India. It transpired that the witness had not given the statement alleged by the Prosecution and he had agreed to testify for the defence on this point. Once the authorities had learned of our intentions the witness was abducted from outside the Tribunal premises by plain clothed officers and remains missing.2 Rather disturbingly, a further two defence witnesses, who previously gave statements to the Prosecution, are also now missing. By way of background, in the immediate aftermath of the conflict the International Crimes

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See Human Rights Watch report dated 13 November 2012; http://www.hrw.org/news/2012/11/13/bangladeshinvestigate-alleged-abduction-war-crimes-witness
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Tribunal Act 1973 was enacted for the purpose of putting on trial 195 Pakistan POWs identified as the most responsible for atrocities committed during the nine-month conflict. The legislation was drafted following recommendations made by the International Commission of Jurists (ICJ) although few of the recommendations were followed as Professor Otto Triffterer, one of the drafters of the ICJ report, has stated. Of particular note is the ICJs recommendation that the Tribunal be established with international judges, prosecutors and defence counsel. It may be recalled that this position was endorsed by Sheikh Mujibur Rahman, the founding father of Bangladesh, in his first televised interview with the British journalist David Frost, at the end of the armed conflict, when he actually called for an international inquiry with the support of the United Nations. The Tribunal effectively lay dormant for 39 years until the current Awami League Government used its reenactment as their central election pledge. The legislation remains the IC(T)A 1973, with minor amendments passed in 2009 and 2012. It is outdated and fails to apply accepted international standards in a number of respects. The establishment of the Tribunal was welcomed by the international community as an indication to the end of impunity that has pervaded politics in the country since the end of the war. Bangladesh is a member of both the International Covenant on Civil and Political Rights and the Statute of Rome for the International Criminal Court since 6 September 2000 and 23 March 2010 respectively. However, from the start it has woefully failed to meet fundamental fair trial rights and due process standards provided for under these treaties. It is essential that the international community, and in particular the ICC Assembly of State Parties, to make this issue a priority. The international community has an obligation towards Bangladesh in terms of ensuring it has the capacity to establish a process based on the rule of law. It would not be an exaggeration to suggest that the Government of Bangladesh is creating a very dangerous precedent for developing nations that see this is a political tool to stamp out any political opposition. It is important to emphasise that, as an international lawyer specializing in war crimes, the initiative to bring an end to a culture of impunity must be fully supported. It would be quite inappropriate to suggest that such an initiative should be stopped although in its present form it certainly should not be allowed to continue. As a lawyer, I spent 8 years in Bosnia and Herzegovina advocating for an independent and impartial judicial process to put on trial those accused of having committed crimes during the 1992-1995 armed conflict and for 4 years served on the prosecution in ensuring that those accused of atrocity crimes were brought to justice. I have also spent the past twelve months advocating for an appropriate judicial response to put on trial those who have committed grave crimes in the Syrian Arab Republic. I have also advocated,

in the context of Bosnia and Syria, that there needs to be a long-term transitional justice process not merely a series of politicized trials. The vast majority of examples of war crimes justice institutions demonstrate that international support is essential in order to maintain standards of transparency and due process. On 24 November 2012 I became aware that one of the members of the audience, a member of the International Crimes Strategy Forum had published a blog in which he made a number of highly controversial, and wholly inaccurate, comments. The author, Nijhum Mojumdar, claiming to represent the International Crimes Strategy Forum, made a number of remarks that require a full response. Further, in order to prevent any confusion a full audio recording will be made available and a full transcript issued. First, the author suggested that present at the meeting were authors of the Rome Statute and Prosecutors of the Rwanda and Yugoslavia Tribunal, members from different Embassies, NGOs, and hundreds more people involved in international criminal law. In reality, there were significantly fewer participants, possibly around 30-40 in total. It is quite correct to state there were a number of important personalities, but it is quite inappropriate to suggest there were representatives from Embassies and Prosecutors from the Yugoslav and Rwanda tribunals; there clearly were not any prosecutors present. This is not to diminish the significance of the event, there were a number of important personalities present, some of whom asked the panelists important questions, including representatives from the ICTY Association of Defence Counsel, Coalition for the ICC, The Hague Institute for Global Justice and the ICC Assembly of State Parties. The second point raised concerns a statement that I allegedly made that the trials in Bangladesh should be conducted under the Rome Statute and within international standard. In response, it was suggested that Rayhan Rashid threw in the challenge that there was nothing under the Rome Statute that required domestic trials to be conducted under the Rome Statute. is clear that the Rome Statute does not have retrospective jurisdiction. In response to the point raised by Rayhan Rashid, I never argued the point that the Rome Statute requires that it applies to national criminal proceedings; it does not. However, the elements of crimes implemented by the Rome Statute reflect an understanding for the need for clear definitions of crimes. This is in line with the fact that proceedings before the ICT are happening now in 2012 and not in 1971. Furthermore, there is a requirement under the Rome Statute to cooperate with the ICC and to adopt implementing legislation. Bangladesh has failed to do so. It is important to recall the First, it is important to note that it is not my suggestion that the trials should be under the Rome Statute. It

statement made by the Honourable Prime Minister of Bangladesh, Sheikh Hasina Wajed on the occasion of the United Nations General Assembly 65th Session, in which she declared that: Bangladesh has established an International Crimes Tribunal to try persons responsible for war crimes and crime against humanity, including genocide, arson and rape committed during our war of liberation in 1971, and immediately thereafter. This action is in accord with the rule of law as reflected in the Rome Statute of the International Criminal Court (ICC), which we have ratified and which aims at bringing perpetrators of war crimes, genocide, and crimes against humanity, to justice. I believe that only justice can heal the unforgivable, deadly wrongs of the past. The Rome Statute sets up a framework determining whether the national justice system is unwilling or unable genuinely to proceed with a case. With respect to inability, Article 17 (2) of the Statute declares that having regard to the principles of due process recognised by international law the ICC is to determine whether national proceedings are being conducted in a manner, which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. The purpose of this complementarity principle is in order to establish a uniform system to try serious crimes. Admittedly this complimentary principle is only triggered in a situation where the ICC can itself exercise jurisdiction over the case if the national courts are unwilling or unable to proceed; not the case with Bangladesh. However, it is the spirit of the complementarity principle that creates legal obligations which leads to the second limb. The ICC was established to try and punish only the most serious violations of human rights in cases where national justice systems fail at the task. It is deemed a model in international criminal justice. It must be highlighted that over 120 states participated in the negotiations at the Rome Conference which formulated the Rome Statute in 1998. Under international customary law and applying the principle of the Vienna Convention on the Law of Treaties when a State consents to be bound by a treaty it constitutes a promise to adhere to the principles in the document and to honour its spirit. It is obliged not to defeat the object and purpose of the treaty. The object and purpose of the Rome Statute is indicated in both Article 17(2) above and the preamble of the Rome Statute which provides that state parties to the Rome Statute are: resolved to guarantee lasting respect for and the enforcement of international justice. It affirms that the most serious crimes of concern to the international community as a whole must not go unpunished at their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation. If this fundamental principle was not the case and the Rome Statute did not impose obligations on state parties where it had no jurisdiction as is the case with Bangladesh, then the following

scenario could potentially exist in present day Bangladesh. In one courtroom, we have the trial of A and B who allegedly committed crimes against humanity/genocide/war crimes 40 years ago and are being tried according to the International Crimes (Tribunals) Act 1973 with no adherence to Rome Statute obligations; as is presently the case. Hypothetically, in a court room next door is the trial of X and Y who committed crimes against humanity/genocide/war crimes in 2012 and are being tried either in national proceedings or before the ICC with the Rome Statute in full operative use. These two sets of proceedings would be conducted under procedures fundamentally at odds; there would be a total lack of consistency. This defeats the international right to equality before the law under Article 7 of the Universal Declaration on Human Rights. The overriding concern is this principle of complementarity an ill-defined and misunderstood notion that is markedly one of the pillars of the ICC system of justice. The very basic notion, as previously noted, is that the ICC is a court of last resort. The ICC was never intended to serve as a tool of imperialism where there already exists the ability and the will to bring an end to impunity at the national level. These issues are currently being grappled with before the ICC Pre-Trial Chamber in the Situation in Libya. Although the Government has consistently stated that the Tribunal will meet the highest international standards of fairness and transparency, it is submitted that this is a hollow and misleading statement. Numerous statements have been made as to the compliance with fundamental rights and freedoms from the Prime Minister, members of the Tribunal and other government officials. It is clear that undertakings have been made to ensure that Bangladesh complies with its obligations under international law, but such representations are hollow and illusory if no practical effect is given. The third point raised in the article referred to the statement I made that I am not permitted to enter Bangladesh. The author didnt attempt to challenge this point, instead he challenged the fact that I had hidden the fact that I had entered Bangladesh five times previously and that I was deported on the basis that I did not fulfill the criteria. First, in relation to allegedly concealing information concerning previously visiting Bangladesh, I have never concealed this information and have stated this publicly on numerous occasions. Concerning the allegation that I failed to meet the immigration criteria, that is simply absolute nonsense. The immigration officials presented me with a letter from the Bangladesh Home Minister forbidding the authorities from granting me entrance to Bangladesh; making me effectively persona non grata. The misinformed author of the offending article would have done well to research his subject before making the comment as the Deputy Head of the Airport Immigration Cell issued a press statement immediately following deportation. Furthermore, approximately one month later, the Bangladesh Minister for Law, Justice and Parliamentary Affairs made a public declaration that to allow me to

enter the country would have been to allow me to interfere with the sovereignty of an independent country. There was no suggestion in the Ministers address that referred to failing to meet the immigration criteria. The fourth point that the author focused on his report was the issue surrounding the alleged abduction of a defence witness, Mr. Sukhronjon Bali. The suggestion was made that the defence were responsible for the abduction and they were at fault for not informing the police that the witness was in their custody. What the author of the offending report fails to mention is that this issue was raised by several participants, most importantly Ms. Schona Jolly from the Bar Human Rights Committee of England and Wales. The author focuses on placing the blame on the defence, but fails to appreciate the point that was made was that there should be an independent investigation. The fifth point concerned the statement I made that there was no effective right to bail. The author made the allegation that I had intentionally misled the audience concerning Mr. Abdul Alim who had been given bail. I did not refer to Mr. Alim as he is not my client and I have no right to discuss his case. However, but the fact that Mr. Alim has been released on conditional bail merely reinforces my argument. The point that I made was that the Tribunal has adopted a position, that is evidenced by its many orders refusing bail, that provisional release is determined solely by reference to the health of an accused person. The point that I have made repeatedly is that there is a presumption in favour of bail unless the prosecution is able to establish relevant and sufficient reasons to the contrary. By merely focusing on the gravity of the offences and requesting the accused to establish grounds as to why he should be released is in breach of recognized standards under the International Covenant on Civil and Political Rights. It is for this reason that we argued before the United Nations Working Group on Arbitrary Detention that the detention was arbitrary and in breach of international law. The UN Working Group agreed and issued an opinion to that effect. The sixth point that the author refers to is the resignation of Judge Zahir. I made the point that he was forced to resign. I did not state this as my opinion; I referred to comments in the media. Concerning the allegation that I had criticized the judges of the Tribunal and then as soon as one resigned I rushed to defend him as independent and impartial is simply untrue. In response, I gave a clear reply to the effect that the only judge that I had criticized was the Chairman of the Tribunal and then only due to the allegation of bias due to his participation in the Peoples Inquiry Commission, a body which investigated the same crimes in the early 1990s. One matter that was not raised during the discussions, however, but is of significant concern, is that Judge Zahir was the second judge to step down from the first Tribunal (a previous judge was appointed as Chairman of the second Tribunal) and therefore the Sayedee case, the first trial to be

completed, has continued with only one judge from the initial panel of three, and the same judge over which there has been great controversy. The seventh point that the author misinterprets concerns the issue over foreign lawyers being granted rights of audience to appear at the Tribunal. The issue arose following a question from a member of the International Crimes Strategy Forum. I responded to the effect that the Tribunals Rules of Procedure permits foreign to appear counsel for either the prosecution or the defence with the consent of the Bangladesh Bar Council. I stated that the Bar Council had refused to give consent based on the issue of citizenship. The author of the article refers to Rayhan Rashid explaining that Bangladesh national laws and the Bar Council as an organization has the right to permit or refuse foreign counsel, although there is provision under section 42 of the ICT Act. It is in fact Rule 42 of the Tribunals Rules of Procedure that provides for foreign counsel, as I made clear in my presentation. I also stated that I must respect the decision of the Bar Council, irrespective of whether I agreed with it or not. I made all these points clear in my presentation and responding to the question from the audience. The author then suggests that I avoided almost all questions tactfully. This is quite untrue. I answered all questions that were put directly to me. I even had an opportunity to speak informally with Dr. Ziauddin Ahmed and Rayhan Rashid who requested that we arrange a follow up debate. I replied that I would happily attend any public discussion on the Tribunal provided it was organized under proper conditions and the participants respected the rules of engagement. To suggest that everyone understood my avoidance or to suggest that I was uneasy with the format of the debate is an immature attempt to gain something from the gathering. Importantly, one of the members of the International Crimes Strategy Forum, a young Bengali lawyer from New South Wales, told the organizer of the debate, Niccolo Figa-Talamanca, that they want to see the accused hanging before the elections, in which case they project an electoral victory. This statement was made in the presence of several participants, including members of the NGO community who were appalled by such conduct. The author speaks with pride as to how the learned prosecutor replied to the many questions put. I would state that on the whole the prosecutor conducted himself professionally; unfortunately some of his colleagues did not. The only criticism I may make of the prosecutor is that his emotions got the better of him and he decided to embark on a political speech that was clearly in breach of the presumption of innocence. Further, he made several errors by suggesting that the interrogations were conducted in the presence of counsel, which is quite inaccurate as the Tribunal has repeatedly refused to allow the presence of counsel. The learned prosecutor further tried to portray the proceedings as a defence charter, something that could not be further from the truth. Of particular concern, was the number of breaches made by the learned prosecutor and

like-minded audience members who on a number of occasions breached an accuseds right to be presumed innocent. Of notable reference is the fact that the learned prosecutor stated in response to an audience question, that although he agreed with the defence that there was now a rush to judgment in all the cases, this was of no huge concern due to the fact that the accused had been known as war criminals for the past 40 years. In the interest of full disclosure the only error that I made during the debate was in relation to a remark made by the learned prosecutor. He had suggested that the period for appeal had been reduced from 60 days to 30 days and that this amendment had been made in the interest of the accused so as not to detain them for unreasonable periods. I made the suggestion that this was a most dishonest remark and I was rightly rebuked by the chair. It is not the learned prosecutor who made the change; it was the Government and any allegation of dishonesty should be directed at the body responsible for the amendment. The author then refers to Dr. K. Anderson from the Hague Institute for Global Justice (http://www.thigj.org) who allegedly asked why do I oppose the trial under domestic law as it is a sovereign country. In fact, Dr. Anderson asked two questions. The first question was with regards whether genocide had been tried in any proceedings before the ICTBD. The second question referred to my statement that the process should be internationalized. I replied that in my opinion the best solution was for a process similar to the Bosnian War Crimes Chamber; a domestic institution with international support by way of judges and prosecutors. Dr. Anderson did not appear to question my motive; he was merely interested to hear an explanation. A number of further practical questions were asked by the audience which have significantly been omitted by the author in his article. Following the learned prosecutors contentious reference to the reduction in appeal period, a number of questions were directed to him in reference to the possibility of extension in appeal time in light of the fact these were capital cases and further more whether the appeal procedure has been pre-determined. Although the learned prosecutor stated that at present there was no bar to an extension of time, it was Rayhan Rashid s opinion that this was not possible and that the entire appeal brief was expected within 30 days after judgment. With respect to the procedure in place for the appeal, it was stated that the rules of the Appellate Division of the Supreme Court would be adopted, although as I re-iterated this has never been made clear to the defence by the Tribunal. The author also neglects to mention the question arising as to whether there would be a right to re-trial of an accused convicted in absentia. In both international scenarios such as the STL or indeed the domestic frameworks such as the German judicial system, this remains a fundamental right. Not so in Bangladesh according to the learned prosecutor and Rayhan Rashid. The audience were further clearly concerned with fundamental rights including an accuseds right to remain

silent and the right to testify and present its own case. As observed by the learned prosecutor, these are rights that have been implemented by the amendments to the Rules of Procedure made in 2011. However, in practice, I argued this was clearly not the case. The accused Sayedee has continuously been prevented from testifying in his own case despite the Tribunal assuring him that he would get the opportunity throughout the trial. Most recently, it has been stated that he has been afforded the chance to testify in light of the fact that he was able to plead not guilty to the 20 charged concerning crimes against humanity and genocide. It must be noted that this entrance of plea was made immediately after the accused had heard the 20 charges brought against him and without any legal consultation, as prevented by the Tribunal. Finally, the author neglects to mention the fact that the audience took issue with the learned prosecutors comment that proceedings before ICT were transparent in light of the fact that a number of news agencies were present in the courtroom during such proceedings. One particular question addressed the fact that given that news agencies in Bangladesh were bipartisan, this could hardly be considered open and transparent, and rather were there any formal transcripts of proceedings? The learned prosecutor answered in the affirmative explaining that these were available to both parties on request. As a member of defence I can state that so far the defence has not received any formal transcripts of proceedings but following the conference, a further application is pending. A number of other questions were put to the learned prosecutor, including with regards to his statement that the Tribunal was willing to adopt the frameworks of other systems. Unfortunately, given the time restrictions, it is understandable as to why the learned prosecutor was unable to respond. However, it would do an injustice and indeed portray a rather skewed image of the event, if the questions put to the learned prosecutor were not mentioned, as indeed omitted by the author. For example, there was a lengthy discussion as to the nature of interlocutory appeals before the Tribunal. In his opening statement, the learned prosecutor stated that the Tribunal was accusedfriendly as reflected by the provision allowing for review of decision within 7 days. In response, I noted that Rule 26(3) was indeed only added in 2011 and furthermore, only allowed for a review of a decision to be made by the same bench. Characteristically, Rayhan Rashid stated that the nature of reviews was to delay proceedings, which prevented the accused from accessing speedy trials, neglecting his right to review from an alternative bench. It is important to note that I was made the focus of much of the animosity during the debate and this is made quite clear in the offending article. The Chair of the debate, Niccolo Figa-Talamanca, requested the audience during the debate to not make me the focus and instead to focus on the issues. However, I continue to be the focus due to the fact that I have highlighted the many concerns.

Immediately following the event No Peace Without Justice issued a statement and the final remarks stated as follows: The ICT has an historic mission to close this traumatic chapter and to give voice to the hundred of thousands of victims and survivors who deserve justice to be done and to be seen to be done. It can fulfill this mandate by bringing to justice those who ordered and committed wide-scale atrocities; providing acknowledgement and redress to countless victims; and creating an undeniable factual record of the events that reflects the real experiences of all affected communities. The ICTs obligation and responsibility is, therefore, not just to punish perpetrators who are proved guilty beyond a reasonable doubt, but to provide a fair process that is explained to victims and to the people of Bangladesh, so that they can understand and follow the proceedings and feel that justice is being done. The ICT should demonstrate its ability and willingness to conduct proceedings with fairness, impartiality and strict adherence to due process and to apply the highest international standards in the enforcement of crimes under international law. Unless the defence is able to bring witnesses and challenge the prosecution case free from harassment and intimidation, the ICT will have failed the victims and the promise of justice. Such a failure would make it inevitable for a future government to negate the tribunals achievements and to promote revisionist policies that will glorify perpetrators and vilify the victims. In particular, any application of the death penalty for individuals being tried by ICT will virtually guarantee that the process will be viewed by opponents and potential supporters alike as a clumsy attempt to exact political revenge on opposition leadership under the guise of fighting impunity. To keep the promise of justice for victims that the ICTs establishment represented, Bangladesh needs immediately and categorically to exclude the death penalty for individuals accused by the ICT and apply in full all due process guarantees, including protection of defence witnesses, potential witnesses and counsel from harassment and intimidation; full application of the presumption of innocence; and all other due process rights, to the highest international standards. As trials are ongoing, the ICT can still ensure that these standards are applied and that they are seen to be applied. It is essential that the legislative framework and procedures adopted by the Bangladeshi Government comply with its international human rights and other treaty obligations and ensure that the trial process is conducted in a fair and transparent manner, in order to prevent the ICTs proceedings from being easily dismissed by a future government as unjust, widely condemned politically motivated judicial vengeance. It is with deep regret that the trials at the Bangladesh Tribunal represent little more than a cynical attempt to weaken a political opposition and to remove an Islamic political party that is founded

on democratic principles. What I have sought for my clients, and what the international community has demanded, is that those accused of having committed Genocide, War Crimes and Crimes Against Humanity during the 1971 War of Liberation are tried by an independent and impartial tribunal of law, independent of political influence, in an atmosphere where witnesses may give evidence without duress, where defence counsel may operate independently and impartially without the threat of arrest and that only those bearing individual criminal responsibility be tried irrespective of whether they are members of the military or civilians and irrespective of whether they are Indian, Bengali, Bihari or Pakistani. This should be considered the absolute minimum requirement. Further, if the Government of Bangladesh is unwilling or incapable of holding trials under such conditions, with full respect for the fundamental rights of the accused, then this process should be transferred to a tribunal of international jurisdiction that is capable of holding trials under such conditions. The question is therefore what should be done. It is my unwavering opinion that this is a process that should be the subject of an international inquiry. The Government of Bangladesh speaks of this process meeting international standards and that it is the will of the people. The Government speaks of the strength of the evidence against those men sitting in the dock. The Government also speaks of the exemplary legislative framework being the best in the world. The current Prime Minister, Sheikh Hasina Wajed stated in 2009 that her Government sought the support of the United Nations in setting up the International Crimes Tribunal this of course was an entirely misleading statement, as the Government has no desire for international support, as this would highlight the political nature of the trials. Further still the Prime Minister has repeated statements of UN assistance in the conduct of trials and ensuring that the rule of law is enforced indiscriminately at a recent UN General Assembly meeting in New York. Well, if these rather boorish arguments are to have any substance and if the wealth of evidence against the accused is so compelling then there is nothing to fear from international scrutiny. In my view, the Bangladesh authorities, by their actions, have shown that they possess neither the will nor the ability to hold trials under international standards. As part of my presentation at Colombia University I set out the role of the International Criminal Court under its principle of complementarity and the role of the United Nations, principally the Human Rights Council and the Office of the High Commissioner for Human Rights. The international community has issued countless calls for reform of this process to be implemented as a matter of urgency. Despite protestations to the contrary, the Government of Bangladesh has failed to implement the vast majority of their recommendations. In June 2011 the Tribunal made a number of superficial amendments to its Rules of Procedure; which in practice have no effect at all.

The sentence of death remains a sentencing option for the Tribunal and the Government of Bangladesh has made no secret of its desire to execute the defendants. One senior member of the Awami League Government recently stated that three of the defendants would be executed on 16 December 2012 to commemorate the anniversary of independence. It is reasonable to argue that the considerable shortcomings of the Tribunal place the accused in real and serious danger of being arbitrarily deprived of their rights and summarily executed following trials that can be characterized as little more than show trials. It is important to highlight that a number of concessions were made by the representatives of the had previously sought the assistance of the United Nations, but this assistance has not been forthcoming. It was also conceded that the Tribunal should have the jurisdiction to put on trial any person bearing criminal responsibility, irrespective of what side of the conflict they fought, including, those who fought for liberation. These were important concessions that cannot be trivialised. If these representations made on behalf of the Government of Bangladesh were legitimate, then the United Nations, and the international community, can now engage with the Government of Bangladesh and ensure that the Tribunal is given sufficient international assistance and, more importantly, oversight. It is therefore now absolutely essential that this matter be placed on the agenda of the United Nations Human Rights Council. Bangladesh is flouting its international obligations as a state party to the International Covenant on Civil and Political Rights and the Rome Statute of the International Criminal Court. The international community must ensure that the culture of

edures. If the complaint is upheld, the

ion to the Director General of the

ure and the PPO Government of Bangladesh. Importantly, Dr. Ziauddin Ahmed made the point that Bangladesh cannot be used to

oard.

e sought if there are no other suitable

ot a suitable remedy, as it does not have

tion.

t is counsels view that there exists a

g judicial review for the reasons set out

impunity, whether by individuals, interested groups, political parties or members of the April 2011was procedurally unfair so as to Government, is brought to an immediate end. on law duty of procedural fairness and in The Government of Bangladesh speaks of bringing an end to a culture of impunity. It speaks of bringing justice to the victims of the 1971 War of Liberation. However, at present it is

CHR; and

of 8 April 2011 establishing a very dangerous precedent in international criminal justice and it needs to recognize was in breach of the

ness.

that this process has far greater consequences than the next general election.

Toby M. Cadman

Toby M. Cadman

London,Bedford Row 2012 9 26 November

London WC1R 4AZ 31 May 2011