IBA's Opinion on Consistency of Bangladesh’s International Crimes (Tribunals) Act 1973 with International

opinion of the International Bar Association:INTERNATIONAL BAR ASSOCIATION, WAR CRIMES COMMITTEE TO THE UNITED KINGDOM PARLIAMENT HUMAN RIGHTS GROUP on

Consistency of Bangladesh’s International Crimes (Tribunals) Act 1973 with International Standards



DATE: 29 December 2009
REQUEST FOR REVIEW AND OPINION:
A request has been made by the UK Parliament Human Rights Group to the War Crimes Committee
of the International Bar Association to conduct a legislative review of the Bangladesh International
Tribunal Act 1973, as amended by the Amendment Act 2009, and provide an opinion as to whether
it is consistent with current international criminal standards.
PRELIMINARY OBSERVATIONS:
i. The War Crimes Committee (WCC) of the International Bar Association (IBA) consists of lawyers
practising or with a special interest in international criminal law. It includes prosecutors, defence
lawyers and academics.
ii. This Opinion considers only the consistency of the Bangladesh legislation with current inter
national standards. It does not consider the wider political justification for holding such crim
inal trials in Bangladesh.
iii. The WCC, as a part of the International Bar Association, is committed to the prosecution of
those responsible for violations of international criminal laws. Such prosecution must however
be based upon international standards of fair trial, both in the identification of accused and
the conduct of the investigation and trial process.
CONCLUSIONS:
i. The 1973 legislation, together with the 2009 amending text, provides a system which is
broadly compatible with current international standards. However, there are some areas
which now appear out of date, having fallen behind the more recent practice in i n t e r n a -
tional tri bunals. This includes the basic definition for some of the crimes, as well as the penalty
available upon conviction.
ii. The area of greatest concern is with respect to the rights protecting the interests of individuals
on trial. Here there are some significant omissions of the accepted international standards.
The most basic account of those standards is set out in Article 14 of the International Covenant
on Civil and Political Rights. Although a number of those standards are included within the
1973 legislation, there are others which are not, and would therefore leave a Bangladesh
tribunal open to criticism.
iii. Moreover, the rights of an individual during the investigation stage (as opposed to during
trial) are separately identified in the text which established the International Criminal Court.
These are missing from the Bangladesh legislation.
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14
SUMMARY OF RECOMMENDATIONS:
xv. The definition for Crimes against Humanity should be amended to read:
Crimes against Humanity means any of the following acts when committed as part of a wide
spread or systematic attack, with knowledge of the attack: murder, extermination, enslave
ment, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane
acts committed against any civilian population or persecutions on political, racial, ethnic or
religious grounds, whether or not in violation of the domestic law of the country where per
petrated;
xvi. Section 4 of the 1973 Act should be amended to include the words ‘knew or should have
known’ in the definition of superior responsibility, which would bring the section into line
with the more recent statutes.
xvii. The Tribunal’s jurisdiction should be extended to cover criminal responsibility for civilian
superiors, not just military commanders.
xviii. Subsection 6(5) of the 1973 Act should be amended so that if any one of the Tribunal members
is unable to attend a hearing, the trial is adjourned.
xix. A provision should be added allowing for challenges to the constitution of the Tribunal or
appointment of its Chairman or members based on impartiality. A different chamber (preferably
a Court of Appeal) should adjudicate challenges to Tribunal members within a limited
and fixed timeframe to ensure a speedy recommencement of the trial itself.
xx. Subsections 8(5) and (7) of the 1973 Act should be removed on the basis that they are
unworkable and unnecessary.
xxi. Subsection 11(2) should be amended so as not to allow the Tribunal to draw a negative in
ference from an accused person’s silence.
xxii. Section 18 should be removed.
xxiii. Protection against self-incrimination for accused persons should be made explicit. Similar
protection should be provided for witnesses as well.
xxiv. A provision should be added to section 10 to allow defense counsel to make an opening
statement.
xxv. The rights provided in Article 14 of the ICCPR should be added to the 1973 Act. At minimum,
section 12 of the 1973 Act should be amended to include mandatory language. For example,
the amended provision could read as follows:
Where an accused person is not represented by counsel, the Tribunal shall, at any stage of the
case, direct that a counsel shall be engaged….
xxvi. The provision in the 1973 allowing for the death penalty to be used against a convicted
accused person should be removed from the legislation.
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15
xxvii. The legislation should be amended so that convicted persons are provided the right to appeal
to an appellate court apart from the regular judicial structure.
xxviii. Subsection 19(1) should be deleted from the 1973 Act.
xxix. Special evidentiary provisions regarding proof of historical facts should be added to the
legislation.
xxx. The duties and powers of the prosecution set out in Article 54 of the Rome Statute should be
added to the 1973 Act.
xxxi. The rights of a suspect during the investigation stage set out in Article 55 of the Rome Statute
should be added to the 1973 Act.
AUTHORITIES AND REFERENCES:
i. The London Charter of the International Military Tribunal (Nuremberg Charter): 8 August 1945;
ii. International Covenant on Civil and Political Rights: adopted by United Nations General Assembly,
16 December 1966; came into force 23 March 1976.
iii. Rome Statute for the International Criminal Court: 17 July 1998; and