Naeem Mohaiemen and Jyoti Rahman
Published in the Daily Star on 10 July 2009.
THE Law Minister Shafiq Ahmed presented the International Crimes (Tribunals) (Amendment) Act 2009 in parliament this week, with the Speaker urging quick passage before the end of the current parliamentary session. The 2009 act presents some amendments to the original 1973 act to make it “contemporary” (jugupojogi), “fair and neutral,” and “globally acceptable.”
Newspaper reports suggest amendments have been made to: provision to try individuals and groups of individuals; provision for appeal; and English being the official language of the trial along with Bangla.
While we applaud the steps to amend the act, we are, nonetheless, concerned that the amendments were not rigorous enough. In a rush to pass the amendments, insufficient attention has been given to major developments in last three decades in international law, especially as per International Criminal Court (ICC), International Criminal Tribunal for Rwanda (ICTR), and International Criminal Tribunal for former Yugoslavia (ICTY).
Let us consider some key issues that were not addressed in the 2009 amendments, but are crucial for a durable prosecution of war criminals.
Definition of War Crimes, Crimes Against Humanity, and/or Genocide: Our definitions need to be synchronised with Article 147 of the Fourth Geneva Convention and other international definitions. Such a definition should include the following:
-Persecution against any identifiable group on racial, ethnic, religious grounds.
-Torture or inhuman treatment.
-Committing rape, sexual slavery, enforced prostitution, etc.
-Unlawful deportation or transfer or unlawful confinement.
-Taking of hostages and enforced disappearance of persons.
-Intentionally directing attacks against buildings, material, etc.
-Extensive destruction and appropriation of property.
Definition of sexual violence: Definition of genocide in the 1973 act does not identify rape as an instrument of genocide. Genocidal rape in legal discourse has come particularly from ICTR and ICTY. We note the Akayesu trial for Rwanda, where ICTR found him guilty of nine counts of genocide and crimes against humanity including ordering genocidal rape. It is important to note that “genocidal rape” is distinct from “war rape.” The former is rape with the purpose of destroying another group. Rwanda and Bosnia provide some of the best-documented examples of genocidal rape, which include statements made by perpetrators during commission of the acts of sexual violence.
Definition of those under Military Command: A rigorous definition should include the following:
-Person acting as a military commander shall be criminally responsible for crimes committed by forces under his effective authority and control
-That person either knew or should have known that the forces were committing or about to commit such crimes.
Independence of judiciary: We believe that persons appointed to the tribunal should have the following:
-Established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings.
Independence of prosecutors: We believe that the prosecutors’ independence should be guaranteed by the following:
-The Office of the Prosecutor shall act independently as a separate organ of the tribunal.
-Neither the prosecutor nor a deputy prosecutor shall engage in any activity which is likely to interfere with his or her prosecutorial functions
-The prosecutor can appoint advisers with legal expertise on specific issues.
Witnesses: There are no provisions made for protection of witnesses. The ICC statute provides that the court will take appropriate measures to protect the safety and physical well-being of the victims. The court is directed to take factors such as gender and the nature of the crime (including whether it was a sexual crime) into account in deciding to grant special protections.
Sentencing: It should be stressed that death sentences are not allowed under international law, even for genocide, crimes against humanity, war crimes and crimes against peace. Death sentences would hinder Bangladesh receiving and sustaining international support on this issue.
Reparations: Reparations to victims should be considered for inclusion, even if they are not defined in detail at this stage. We should consider whether individual compensation or community-based reparations are more appropriate. For comparative purposes, Rwanda created a graduated scale of specific losses to amount of reparations received.
The above and other issues should be considered during thorough legal review. The primary purpose of doing a review of the 1973 act is to ensure a robust legal structure, so that cases filed under this act are strong and transparent, and do not get rejected in a future appeals court. For those of us deeply committed to successful war crimes trials, we believe it is absolutely essential that the trials are rigorous and conform to international standards, so that the verdicts can be internationally recognised and respected.