Justice or Vendetta?
By Humaira Masihuddin
Islamabad, Pakistan
The hanging of Abdul Quader Molla in Bangladesh on 12th Dec 2013 has evoked a strong reaction in Pakistan, as expected. The National Assembly passed a resolution condemning it and a great many are seeing in this move a willful act of revenge by one political party against another. On the other hand, there are some political parties which purport to support a sovereign nation’s right to do what it thinks as correct and to end what has been called the ‘cycle of impunity'.
Without going into the lengthy debate on peace vs justice and retribution vs revenge, etc, this article seeks to evaluate the standards of due process which are expected from an international tribunal, and asks whether the international community should give its stamp of approval to these trials or express concern.
The whole purpose of setting up international criminal tribunals in the arena of international law is to bring criminals, who have committed crimes against humanity, to justice. States set up these
ad hoc international tribunals in order to get the stamp of international approval and to prove their political neutrality vis a vis the trials. A short reference to the history of ad hoc international tribunals shows that the trend in modern history started after the Second World War by the setting up of the Nuremberg and Tokyo tribunals, which have always been criticized and seen as tribunals managed by the victors to try the vanquished.
In recent times, the International Criminal Tribunal for Yugoslavia (ICTY) (1993) and The International Criminal Tribunal for Rwanda (ICTR) (1994) were both set up under the enforcement regime of the Security Council acting under Chapter 7 of the UN Charter, truly within the ambit of ensured international standards.
Cambodia and Sierra Leone also, with reluctant support from the United Nations, set up courts referred to as internationalized courts, to be later followed by mixed composition panel of judges in the UN-administrated territories of Kosovo and East Timor.
The subject matter of jurisdiction of these courts or tribunals, with a few exceptions, pertains to the crimes of genocide, crimes against humanity, war crimes and other serious violations of International Humanitarian Law.
The International Crimes Tribunal of Bangladesh is a strange case in point. It is being viewed with grave concern in some international circles and its departure from the standard practice of other tribunals is now ringing alarm bells. A large number of objections can be brought against the said tribunal; the most important ones are listed below.
Objection no 1: While all the second generation ad hoc country specific criminal tribunals and courts mentioned above have been made under the authority of the United Nations, it is not very clear as to from where the International Criminal Court of Bangladesh derives its international legitimacy from, except from the International Crimes (Tribunals) Act 1973 which has been amended in such a way that precludes constitutional guarantees regarding fundamental rights. In fact, in an interview given to ‘Crimes of War Project', Professor Suzannah Linton of Hong Kong University said that the legislation of 1973 in Bangladesh “runs contrary to its international obligations and the wider objective of the international criminal justice movement, which is not to bring about revenge, but justice.”
Objection No 2 : A cursory look at all the other international criminal tribunals shows that the prosecutor, the registrar, the investigators, as well as the judges are drawn from a mixed composition of national and international individual. To cite just two examples, the organizational structure of the special court in Sierra Leone is composed of three judges in the trial chamber, of whom two are international and the extraordinary chambers; for Cambodia, five judges of whom two are international. In the case of the tribunal in Bangladesh, the entire body of three judges, twelve prosecutors and the seven-member investigation committee are all Bangladeshis. This should draw raised eyebrows, especially in the light of the fact that the Secretary General of the United Nations had held negotiations with Cambodia for three years before the organizational compositions for the extraordinary chambers in Cambodia were agreed upon, and that too with great reservations by the Secretary General’s office, due to expected bias in the bench which had more Cambodian judges than international ones.
Objection no 3 : The controversial 1973 International Crimes (Tribunals) Act has also amended the definition of genocide to include “political groups”, which is not a part of the original definition of genocide as contained in article 2 of the Genocide Convention, nor is reflective of Customary International law which shows the arbitrariness with which international law and its principles are being approached by the Bangladeshi government.
Objection No 4: Observers are also pointing out serious flaws in the procedural law that is being followed. The Act and the Rules of procedure and evidence lack the basic minimum standards that are followed universally, and which ensure a fair trial. For example, there is no mention of the standard and onus of proof, the right of the accused to remain silent, the right to counsel in the pretrial phase, and, most importantly, the presumption of innocence.
Objection No 5: The Bangladeshi International Crimes Tribunal also breaks rank with all the other international criminal tribunals by awarding the death penalty, which is excluded by the Statute of the International Criminal Court as well as all the other international crimes tribunals without exception, as the United Nations unconditionally opposes the death penalty under all circumstances, even for the most heinous crimes.
The United Nations’ working group on arbitrary detention has already declared that by detaining suspects without the right to bail, the Bangladeshi government is in breach of Article 9 of the Universal Declaration of Human Rights (UDHR) as well as Article 9 of the Internal Covenant for Civil & Political Rights (ICCPR). Also, the UN High Commissioner for Human Rights, Ms Navi Pillay, has expressed alarm at the awarding of the death penalty to 152 paramilitary soldiers in November of this year while reminding Bangladesh of its obligations under the Convention Against Torture, saying any evidence gathered through torture not be used in court.
In light of the above, should the international community watch in silence as a responsible member of the international community violates and breaches international law standards with impunity? Or, should there be international censure to ensure that the extremely foul precedent being set up by the Bangladeshi government is rejected unconditionally and never allowed to be repeated again, certainly not under the cover of “International Law”?
(The writer is a lawyer who is currently enrolled in LLm (International Law) University of London )
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