Say expert int’l lawyers
by David Bergman
The law by which the government intends to prosecute people suspected of war crimes during the 1971 liberation war has been criticised by an expert group of international criminal lawyers.
The legal opinion, obtained exclusively by The Daily Star, states that the International Crimes (Tribunals) Act 1973 contains ‘out of date’ definitions of criminal offences, provides inadequate rights to individuals subjected to investigation, and has ‘significant omissions’ with regard to protecting the rights of those on trial.
However the opinion acknowledges that the legislation ‘provides a system that is broadly compatible with current international standards’.
In total, the lawyers recommend 17 changes to the 1973 act.
The opinion was written by the War Crimes Committee (WCC) of the International Bar Association (IBA) following a request by the UK All-party Parliamentary Human Rights Group chaired by Lord Avebury in October last year.
The committee comprises an expert advisory board made up of highly regarded international lawyers including former judges, prosecutors, and defence counsels involved in the International Criminal Court and the tribunals relating to war crimes in former Yugoslavia and Sierra Leone.
The Bangladesh government has not yet formally received the legal opinion — but a spokesperson of the UK parliamentary group told The Daily Star that ‘after the group considers the document internally, it intends to forward the report to the Bangladesh government for comments’.
The legal note, sent to the UK parliamentary group in the last week of December 2009, first raises concerns about the definitions of two offences in the 1973 act. It suggests that the offence of ‘crime against peace’ should be deleted as it contains ‘outdated statutory language which remains undefined in most recent statutes in international criminal law’.
It also states, the definition of ‘crimes against humanity’ used in the 1973 act, ‘misses an important element of the more modern definition’ which says the attacks must be ‘widespread or systematic’ and the accused person must have had ‘knowledge’ of the attacks.
The international lawyers argue that the ‘area of greatest concern is with respect to the rights protecting the interests of individuals on trial’, adding that there are ‘some significant omission of the accepted international standards’ in the 1973 act. They argue that contrary to the provisions in the act, the tribunal should not be allowed to continue in absence of any of its members, and the accused must have the right to challenge the constitution of the tribunal as well as the appointment of its members ‘if possible prejudice arises during the trial’.
The legal opinion goes on to say that the provisions concerning the process of investigation, in particular the rules relating to self-incrimination, are ‘complicated’, ‘confusing’ and ‘should be removed as unnecessary’.
The lawyers propose that the language of Article 14 of the International Covenant on Political Rights which sets out ‘fundamental principles which protect the rights of individuals before a court of law’, and certain sections of the Rome Statute of the International Criminal Court dealing with rights of suspects during investigations, should be included in the act.
Stuart Alford, a co-chair of the committee told The Daily Star that they ‘currently have no plan to take up any issue with the Bangladesh government, but will watch developments in the country with interest’.
Last week Bangladesh State Minister for Law, Justice and Parliamentary Affairs Quamrul Islam told a seminar that the government ‘will make sure that the war crime trials are held as per international standards’.
Three days ago Catherine Ashton, the European Union High Representative for Foreign Affairs and Security Policy, said in reference to Bangladesh that respect for due process in high-profile trials is particularly significant for a country’s international reputation.