Salient Features of the main aspects of the International Crimes Tribunal Bangladesh (ICTBD)
??? Bangladesh got independence through a historic and bloody war from the occupying Pakistan military junta back in 1971. As a result of this long military operation led by the Pakistani military with direct participation, support and collaboration of an ideologically motivated small minority of local people, in the process succeeded in killing three million people, committing 300,000 rapes, and deporting 10 million people to neighboring India, and half of 75 million population internally displaced. Minority people were most hard hit.
??? The crimes committed in 1971 in Bangladesh in terms of brutality, atrocity and heinousness has still regarded as one of the major occurrences since Holocaust. In perpetrating these crimes, the occupying Pakistani army and their auxiliary paramilitary forces (e.g., Razakar, al- badar, etc) did not regard the minimum norms and standards of international war laws (jus in bello).
??? But the perpetrators of these unprecedented crimes enjoyed decades of impunity and remained unaccountable until now. Finally, the Bangladesh government established two international crimes tribunal under the International Crimes Tribunal Act of 1973.
??? The International Crimes Tribunal Bangladesh (ICTBD) is a domestic tribunal established under a domestic legislation, but it deals with international crimes such as genocide, crimes against humanity, and other serious violations of Geneva Convention. It is worthy to mention that the genocide convention and other international conventions actually encourage domestic mechanisms to prosecute war crimes.
??? Though it is a domestic tribunal deals with international crimes, nonetheless, the international crimes tribunal act accommodated and adhere to international standards, fairness and due process and rights of the accused. Technical experts from OHCHR and the International Center of Transitional Justice assisted us in improving its procedures.
??? The tribunal is independent of any sort of external or executive interference. The tribunal is consisted of sitting judges of the Supreme Court of Bangladesh for whom there are constitutional guarantee for the tenure and other terms and conditions of their posts. The government cannot remove or transfer the judges or in anyway alternate or vary the terms of their service that is detrimental to their offices.
??? The prosecution team and the investigation agencies are two separate and independent bodies established under the Act. Government has no scope to interfere in their activities.
??? No unauthorized arrest or detention is allowed under the Act. There are provisions for bail in the Act and also there are provisions for Periodic review of detention on sufficient grounds. At present two of the accused has been released on bail.
??? The Act provides that the accused has right to know the grounds of his/her arrest, it is mandatory for the investigation agency to produce the accused to the tribunal within 24 hours of his/her arrest. The Act further provides that the accused has a right to understand the charges brought against him. The accused is provided adequate time and opportunity to prepare his defense, which is one of the key rights the accused enjoy. The Rules of Procedure of the Tribunals, which have been formulated by the Tribunal judges, specifically included the notion of ???presumption of innocence??? by emphasizing it under the corresponding Rule-43(2) as; ???A person charged with crimes as described under section 3(2) of the Act shall be presumed innocent until he is found guilty???. At the same time, the Rules of Procedure clearly set the threshold of guilt by requiring that the Prosecution has the burden to prove the guilt of the accused ???beyond reasonable doubt??? (Rule 50).
??? There are adequate safeguards and provisions in the Act for the rights of the accused to be heard, to defend, protection from self-incrimination, and alibi.
??? As far as admissibility of evidence is concerned, the Tribunal is required to adhere to the very high threshold of ???probative value??? which also happens to be the set benchmark in other international tribunals prosecuting international crimes. The burden of proof squarely rests on the Prosecution and ???beyond reasonable doubt???. The act provides provisions for the Adequate opportunity for the parties to raise legal and other challenges
??? Trials before this Tribunal take place openly so that justice is not only delivered in public but it is also seen to be delivered. Anyone, including observers from international community and the media is free to attend the sessions of the Tribunal, observe its proceedings, and report. There is no restriction whatsoever as regards such attendance except that of the limitation of seating arrangement.
??? The ICTA and its Rules of Procedure requires that when an accused is found guilty and convicted, that the accused shall receive sentence that is proportionate to the gravity of his crimes as it may appear to the Tribunal to be just and proper. The accused can appeal the conviction and sentence before the highest judicial body in Bangladesh, the Appellate Division of the Supreme Court [Section 21 ICTA].
??? There are provisions that ???The Tribunal, on its own initiative or upon application of either party may issue necessary Orders directing the concerned authorities of the Government to ensure protection, privacy and well-being of the witnesses and/or victims
??? The International Crimes Tribunal Act (ICTA) is compatible with the ICCPR, UDHR, and other international instruments of which Bangladesh is a signatory.
??? The socio-politico-economic condition in Asia region is different from that of Europe or North America. Death sentence is quite in practice here. All of our neighboring countries such as India, Pakistan, Sri Lanka, Nepal, China continue death sentence as a legitimate punishment for the most heinous and serious crime. Even in Bangladesh, through numerous verdict of the apex court of the country, it has been fairly established that death sentences are permissible for the rarest of the rare crimes.
??? Crimes that are so brutal, so heinous and so shocking to the people in general that no other punishment equals the gravity of it shall be punishable by death sentence. The International Crimes Tribunal Act of 1973 provides that, section 20 (1) the judgment of a tribunal as to the guilt or the innocence of any accused person shall give the reason on which it is based: provided that each member of the tribunal shall be competent to deliver a judgment of his own.
??? Upon conviction of an accused person, the tribunal shall award sentence of death or such other punishment PROPORTIONATE TO THE GRAVITY OF THE CRIME as appears to the tribunal to be just and proper. A convicted person has the right to appeal. He has the right to be in safe house and leave the trial room as Mr. Nizami does very often. They can have bail as two of the accused have received bail.
??? Death sentence is not mandatory. If the guilt of the accused is proved, it is the discretion of the tribunal to award punishment proportionate to the gravity of the offences. However this discretion whether exercised properly or not is subject to further review by the Appellate Division of the Supreme Court of Bangladesh.
ICSF COMMENT ON OBSERVATIONS OF US AMBASSADOR-AT-LARGE FOR WAR CRIMES ISSUES MR. STEPHEN RAPP REGARDING THE
INTERNATIONAL CRIMES TRIBUNAL OF BANGLADESH