Letter to the Ministry of Law, Justice and Parliamentary Affairs Regarding Reforming the International Crimes (Tribunals) Act

October 21, 2024

Re: Reforming the International Crimes (Tribunals) Act

Dear Sir,

Human Rights Watch welcomes your government’s commitment to bring to justice those responsible for serious human rights abuses committed during the July 2024 uprising that led to the removal of the Hasina-led government. We appreciate the Law Ministry’s decision to propose amendments to the International Crimes (Tribunals) Act of 1973 with input from international law experts and key stakeholders to ensure the judicial process is in line with international standards.

We welcome the initial amendments proposed to clarify command responsibility and the definitions of war crimes and crimes against humanity in accordance with the Rome Statute of the International Criminal Court. We also appreciate the commitment to transparency in allowing the presence of international observers and the broadcasting of trial proceedings, and the amendments that allow for foreign counsel and provision of witness protection.

However, for systemic reform, we believe that additional amendments to the Act and Rules are necessary to ensure that trials are carried out in accordance with Bangladesh’s international human rights obligations, international criminal law, and Bangladesh's constitution and to ensure a successful legal and judicial process that is fair and impartial in holding the perpetrators of crimes accountable.

The tribunal has already issued arrest warrants against the former prime minister, Sheikh Hasina and 44 others, on charges of genocide during the recent protests led by students opposing discrimination in government job recruitments.

The ICT Act was previously used by the Awami League government to take important steps to prosecute those accused of international crimes during Bangladesh’s independence war. However, the trials fell far short of international standards. There were concerns about the failure of evidence gathering, the independence of judges including collusion with prosecutors, witness tampering, denying proper rights to defense, forcibly disappearing relatives of the accused, and the use of the death penalty.

Any prosecution should be rooted in fair trial standards, including the presumption of innocence, the right of equal access to justice, the right to present witnesses in one’s own defense, and to see and be able to challenge the evidence and witnesses used against you, the right to trial before an independent, impartial, and competent court, and the right to humane conditions of detention.

Additionally, while we recognize the value of proposed section 20(A) to ban a political party for up to 10 years for committing crimes against humanity and genocide, we believe that any such provision will be at risk of political misuse in the future. We have already witnessed the targeting of some political parties by the previous Awami League government. We are concerned that a broad ban on an entire political party undermines other human rights obligations, including the right to free association. We would recommend instead that this section apply to individuals convicted of grave human rights abuses, instead of the political party with which they may be affiliated, unless the party itself is held responsible in law for such crimes, after a fair hearing. Such power to ban a party should be limited to courts, not ministers or other members of the executive power.

We propose these additional amendments to the Act and the Rules:

• Amend Section 20(A) to apply to individuals responsible for severe human rights violations including by establishing command responsibility.
• Amend Section 6(8) of the Act, which prohibits any challenge to the constitution of the Tribunal and the appointment of its members, to comply with Article 14(1) of the ICCPR.
• Ensure that due process rights of the accused under the Act reflect those in international law, including under Article 14 of the ICCPR and Articles 55 and 67 of the Rome Statute of the ICC.
• Repeal Article 47(A) of the Constitution of Bangladesh to allow the accused protection of their constitutional rights, including the right to enforce their fundamental rights under Article 44 of the Constitution.
• Establish an effective and well-resourced Victim and Witness Protection Plan ahead of the trials to address protection and support needs before, during and after proceedings, particularly for individuals that testify against serving security forces personnel.
• Adopt a moratorium on the death penalty and take steps to abolish capital punishment in line with international human rights law.

We have attached in more detail, our concerns and recommendations, so that Bangladeshis have the greatest chance of holding those responsible for atrocities accountable through a fair trial process.

Thank you for your consideration.

Sincerely,

Meenakshi Ganguly
Deputy Director, Asia Division
Human Rights Watch
 

Specific Recommendations

1. Death Penalty

Human Rights Watch opposes the death penalty in all circumstances as an inherently cruel and unusual form of punishment and a violation of fundamental human rights and therefore recommends this penalty be removed.

Section 21 (2) of Act allows for the death penalty to be imposed. Life imprisonment is the maximum penalty that can be handed down by the International Criminal Court, the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia. The UN General Assembly adopted a resolution in December 2007 calling for a moratorium on executions with a view to abolishing the death penalty.

2. Judges

No judge should participate in a case in which his or her impartiality might reasonably be put in doubt. We are concerned about Section 6 (8) of the Act amended in 2013, which does not allow challenges to the composition of the tribunal, its chairperson or its members. This section should be amended to ensure compliance with Article 14(1) of the ICCPR, which provides that everyone is entitled to be tried by a "competent, independent and impartial tribunal.”[1]

As under the Rome statute, both the prosecutor and the accused should have the power to request the disqualification of a judge. Article 41 (2) of the Rome Statute grants the prosecutor and the accused the right to request the disqualification of a judge.

3. Due Process Rights of the Accused

To promote consistency with international fair trial standards, we urge your government to ensure the rights of defendants in criminal proceedings. This includes clearly articulating a defendant's rights before the ICT. Section 17 of the Act amended in 2013 provides accused persons important rights to give explanations relevant to the charges against him or her, conduct his or her own defense or have the assistance of counsel, present evidence at trial, and cross-examine witnesses.

The Act or Rules should include additional protections at both the investigative and trial phases to ensure that Bangladesh lives up to its international obligations under article 14 of the ICCPR, including the right of an accused to:

1. Not be arbitrarily detained. Every detainee should be promptly brought before an independent judge or equivalent to rule on the legality and necessity of their detention.
2. To be able to request bail with appropriate restrictions on travel and witness tampering. Pre-trial detention should be the exception, not the rule and the authorities will need to justify each and every case.
3.  Not be compelled to testify or to confess guilt. Article 67 of the Rome Statute states that the accused has the right to remain silent "without such silence being a consideration in the determination of guilt or innocence."
4. Communicate with counsel in confidence. The Rome Statute (Article 67) states that the defense shall have the right to "communicate freely with counsel of the accused's choosing in confidence."
5. Be tried without undue delay, as required under Article 14(1) of the ICCPR.
6. Stage an effective defense. To do so, the prosecutor should be required to submit to the defense any evidence in the prosecutor's possession or control which, as Article 67 of the Rome Statute says, "shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of the prosecution evidence." This is crucial to determine truth and promote fairness in the proceedings. It is also an important safeguard against prosecutorial misconduct and should be incorporated by amendment to the Act or Rules. Requiring the prosecution to disclose exculpatory evidence is standard practice before the Yugoslav and Rwandan tribunals, the Special Court for Sierra Leone and the International Criminal Court.
7. Have adequate time and facilities for the preparation of the defense including after detailed receipt of the prosecution’s witness statements and other evidence and ensure the defense has the opportunity to challenge all evidence, and examine any witness, that is used against them.
8. Not have imposed on him or her any reversal of the burden of proof. Article 14(2) of the ICCPR explicitly states that defendants shall enjoy the right to be "presumed innocent until proven guilty according to law." This requires the prosecution to prove its case. However, Rule 51 reverses the burden of proof to the accused in an alibi defense. Consistent with the established practice of the ICTY, ICTR, and ICC, the Act or Rules should be amended to require the defendant to provide notice of his or her alibi so as to provide the prosecution with an adequate opportunity to respond, but the burden of proof should remain with the prosecution.
9. Include the principle of ne bis in idem, which ensures that no person will be tried with respect to conduct that formed the basis of a fair prior conviction or acquittal in another court.

4. Fundamental Rights and Article 47(A) of the Constitution

Human Rights Watch is very concerned about the application of Article 47(A) of the Constitution of Bangladesh. Article 47(A) clause 2 states that “Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.”

This provision denies an accused their fundamental rights guaranteed in the constitution and international law, which are accorded to accused persons in all other criminal trials. There is no justification for withdrawing these rights to those accused of violations of international humanitarian law. This article should be repealed as it could form the basis for complaints that fair trial standards are not met under the ICT Act.

5. Interpreter

English and Bengali are the official languages in the trial process. Section 10(3) of the Act states that the accused may be provided with an interpreter if he or she is unable to express himself or herself in, or does not understand, English. This section should be amended to make it mandatory to provide the free assistance of an interpreter, in accordance with Article 14(3)(f) of the ICCPR, which states that the accused has the right "to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

6. Grounds for Excluding Criminal Responsibility or Jurisdiction

Consistent with international practice, we urge your government to incorporate recognized defenses to war crimes, crimes against humanity and genocide into the ICT. Taking into account Article 31 of the Rome Statute, possible grounds for excluding criminal responsibility or that should be taken into consideration on punishment should include mental capacity, reasonable and proportional self-defense, and necessary and reasonable actions taken under duress resulting from an imminent threat of death or serious bodily harm.

Article 26 of the Rome Statute says, “The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.” A similar provision should be added to the International Crimes (Tribunals) Act.

7. Witness and Victim Protection

We appreciate amendments 23(A) and 23(A)2 requiring the protection of victims and witnesses appearing before the court.

Effective protection and support for witnesses and others at risk due to testimony provided during these trials will be an essential aspect of the court's operations. Ensuring the attendance and safety of witnesses will depend on the ability to protect them and treat them with dignity. The experience of other tribunals for these types of crimes strongly suggests that the creation of an adequately resourced witness and victim protection unit within the court administration is an essential component of their successful functioning. At a minimum, such a unit should be able to protect witnesses, victims and their family members before, during and after court appearances, protect personal information, and provide secure transportation to and from the court. Such a unit should also have the expertise to determine when in-country or, in extreme cases, out of country relocation is appropriate and to make arrangements accordingly.

Witnesses should know what rights they have and the protections that are available to them, both inside and outside the courtroom. Clear amendments to the Act or Rules would encourage consistency in the treatment of witnesses, which can also encourage witnesses to step forward and provide testimony, thus strengthening cases.

At the same time, it is important to ensure the rights of accused persons. If witnesses are able to testify without disclosing their identities to defendants, then the criteria for making this determination should be clearly and carefully delineated so that an accused person's fair trial rights are not compromised.

8. Treatment of Detainees

Rule 16(2) states that, “No person during investigation under the Act shall be subjected to any form of coercion, duress or threat of any kind.” This is a welcome statement of principle that is consistent with the Convention against Torture (CAT), to which Bangladesh is a state party. The CAT defines torture as any act by which “severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third party committed... intimidating or coercing him or third person, or for any reasons based on discrimination of any kind,” where such pain or suffering is carried out either with the consent or acquiescence of a public official.

As Bangladesh's law enforcement agencies have a long history of torture and using coercion and duress to force criminal suspects to confess to crimes, we urge you to amend the Rules to include a provision for the application of The Torture and Custodial Death (Prevention) Act, 2013. Evidence obtained by torture should not be invoked as evidence in any court proceedings except against a person accused of torture as evidence that the statement was made.