The International Crimes (Tribunals) Act 1973 was amended to become the International Crimes (Tribunals) (Amendment) Act 2009. It created a Tribunal “for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law” and imported internationally recognized crimes into the laws of Bangladesh.
(a) Jurisdiction
Section 3 gives the Tribunal jurisdiction over crimes committed before or after the commencement of the Act[OB11] .
By section 3(1) A tribunal shall have the power to try and punish any individual or group of individuals, or any member of any armed, defence or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh, whether before of after the commencement of this Act, any of the crimes mentioned in subsection (2).
Bangladesh First Constitutional Amendments 1973
Article 47 (3) was introduced into the Constitution in 1973 and provided[OB12] that members of armed, defence or auxillary forces or prisoners of war detained or charged under any law or provision with genocide, crimes against humanity, war crimes or other crimes of international law which was inconsistent or repugnant to the Constitution, those laws or provisions could not be challenged as being void or unlawful.[3] This amendment had the effect of withdrawing constitutional rights from a particular group of people within Bangladesh society who were not even convicted but at the most were only suspected of such crimes and who could have been detained without the requirement of suspicion.[4] These crimes were international crimes which did not previously exist within the Bangladesh criminal laws and were being imported to deal with events arising from the war of independence as part of the doctrine of universality of such crimes.
Under newly introduced Constitution Article 47A(1)[5] other[OB13] guaranteed constitutional rights were also explicitly withdrawn from such people.[6] These were the rights given[OB14] to every citizen of the protection of the law; the universal right of nullem crimen sine lege[OB15] (no crime without there being a law in force at the time); and the right to an expeditious trial by[OB16] an independent and impartial court or tribunal. By new Article 47A(2)[7] these[OB17] persons detained or suspected or charged were also specifically denied the right to seek remedies available under the Constitution from the Supreme Court of Bangladesh.
The overall effect of these measures was to put persons questioned, detained, suspected of committing crimes or charged with crimes within the International Crimes (Tribunal) Act 1973 outside the norms of the national legal system. For[OB18] the first time inequality had been introduced into the Bangladesh justice system by the Constitution that claimed to promote equality.
The Crimes in section 3(2)(a) these are defined as being[OB19] :
Crimes against Humanity namely, murder, extermination, enslavement, 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 perpetrated;
Crimes against Peace namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
Genocide meaning and including any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, such as:
(i) killing members of the group;
(ii) causing serious bodily or mental harm to members of the group;
(iii) deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(iv) imposing measures intended to prevent births within the group;
(v) forcibly transferring children of the group to another group;
War Crimes namely, violation of laws or customs of war which include but are not limited to murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population in the territory of Bangladesh; murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages and detenues, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
Violation of Geneva Conventions of 1949 of any humanitarian rules applicable in armed conflicts laid down in the Conventions;
Any other crimes under international law;
Attempt, abetment or conspiracy to commit any such crimes;
Complicity in or failure to prevent commission of any such crimes.
The crimes within Section 3 have been defined by many international courts since 1993 when the UN Security Council established the International Criminal Tribunal for the Former Yugoslavia[8]. This was the first of the many international criminal courts and tribunals that have now been established and the definitions of these crimes have been more carefully revised from the model of the Nuremberg Charter from which the ICTAA 2009 is derived.[9]
By Presidential Order No.16 of 1973, the[OB20] liberating forces were given immunity from prosecution under the ICTA 1973. The objects of the prosecutions were thereby defined as being only those from the Pakistan forces. The[OB21] amendments to the Act in 2009 did not incorporate the Presidential decree so as to show with transparency the full terms of this statute. This is a clear attempt to hoodwink the international community into believing these are impartial laws. In fact, there can be no clearer indication of the intention to apply these legal procedures in a discriminatory way and in defiance of the constitutional duties to equality.[10]
(b) Liability for crimes
Section 4 sets out the definition of joint criminal liability and command responsibility[OB22] .
As to joint liability it does not distinguish between offence and crime and so the extent of intended criminal liability is unclear:
4. (1) When any crime as specified in section 3 is committed by several persons, each of such person is liable for that crime in the same manner as if it were done by him alone.
In relation to command responsibility the level of knowledge when connected with “plans and activities involving the commission of such crimes” is also unclear.
4. (2) Any commander or superior officer who orders, permits[OB23] ,
acquiesces or participates in the commission of any of the crimes
specified in section 3 or is connected with any plans and activities
involving the commission of such crimes or who fails or omits to
discharge his duty to maintain discipline, or to control or supervise
the actions of the persons under his command or his subordinates,
whereby such persons or subordinates or any of them commit any
such crimes, or who fails to take necessary measures to prevent the
commission of such crimes, is guilty of such crimes.
(c) Official Position [OB24]
5. (1) The official position, at any time, of an accused shall not be considered freeing him from responsibility or mitigating punishment.
(2) The fact that the accused acted pursuant to his domestic law or to order of his Government or of a superior shall not free him from responsibility, but[OB25] may be considered in mitigation of punishment if the Tribunal deems that justice so requires.
(d) The Tribunal
6. (1) For the purpose of section 3, the Government may, by notification in the[OB26] official Gazette, set up one or more Tribunals, each consisting of a Chairman and not less than two and not more than four other members.
(4) If any member of a Tribunal dies or is, due to illness or any
other reason, unable to continue to perform his functions, the
Government may, by notification in the official Gazette, declare the
office of such member to be vacant and appoint thereto another
person qualified to hold the office.
(5) If, in the course of a trial, any one of the members of a
Tribunal is, for any reason, unable to attend any sitting thereof, the
trial may continue before the other members.
(6) A Tribunal shall not, merely by reason of any change in its
membership or the absence of any member thereof from any sitting,
be bound to recall and re-hear any witness who has already given
any evidence and may act on the evidence already given or
produced before it.
(8) Neither the constitution of a Tribunal nor the appointment of its
Chairman or members shall be challenged by the prosecution or by the accused persons or their counsel.
Conflicts of interest or bias or prejudice or bad behavior of any Judge may not be raised by the parties in order to challenge the fairness and impartiality of the trial. The Bangladesh Constitution Article 35(3) which was in accordance with ICCPR Article 14.1 and UDHR Article 10 giving the right to be tried by an independent and impartial court or tribunal was amended in 1973 so that this right was withdrawn from these cases.[11] New Articles 47(3) or 47A(2) of the Constitution prevents challenge in the Supreme Court to enforce rights normally within the Constitution. These restrictions are also relevant to ICTAA 2009 sections 6(4), 6(5) and 6(6) which permits proceedings to continue notwithstanding the absence of a Judge as well as the substitution of a Judge in the event of indisposition due to death or illness.[12] It is very clear that such arrangements during an ongoing trial may raise genuine issues of capacity for a Judge to be able to try a case fairly in such circumstances. It would at least be in the interests of justice for the court to provide justification and be held accountable for any decisions it made under these provisions
The lack of right to challenge and inability to request the Tribunal to be accountable for its conduct at the time of the trial can also be seen in ICTAA 2009 section 10(h), which restricts the rights of parties to object or question a witness questioned by a Judge.[13] A party may have good grounds for objection to the conduct or action of the Tribunal which may be unfair – for instance if a question contrary to rules of evidence, is unfair, wrong in fact, irrelevant to the issues or misleading to the witness or capable of misinterpretation.
(e) Investigation[OB27]
8. (5) Such person shall be bound to answer all questions put to him[OB28]
by an Investigation Officer and shall not be excused from answering
any question on the ground that the answer to such question will
criminate, or may tend directly or indirectly to criminate, such
person: Provided that no such answer, which a person shall be compelled to give, shall subject him to any arrest or prosecution, or be proved
against him in any criminal proceeding.
Although section 8.5[14] restricts the effect of such questioning to the provision of information, as it is now 40 years since the events concerned there can be no justification based upon national emergency to support such a rule. The[OB29] Bangladesh Code of Criminal Procedure section 161 (2), provides for protection against self-incrimination within the national criminal law of Bangladesh and this is an example of the divergent standards of justice.[15]
(f) Commencement of Proceedings
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