Reviewing the views
Economist Report on the Bangladesh ICT: Arrogance of Ignorance
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The Economist published a piece on 'justice in Bangladesh: another kind of crime' which purported to gainsay the historic works of the Bangladesh ICT by highlighting the elusive virtues of the Israeli due process in the trial of Eichmann. The Eichmann trial was one of the most controversial trials in the world, which commenced with the commission of a heinous crime of abduction of Eichmann from Argentina by Israel. The profound deficiency of due process in this trial, notably defence was made of Jewish lawyers against the expressed will and opposition of Eichmann. Willing German and Austrian defence witnesses were not allowed to enter Israel to testify in support of Eichmann.
One has to remember that Eichmann was not an Israeli national, who was tried for offences committed during the Second World War when Israel did not even exist. Since Eichmann was not a citizen of Israel and committed no crimes within the territorial jurisdiction of Israel, the Israeli court lacked legal jurisdiction to try Eichmann. Israeli had no legal and causal link with Eichmann. Yet Israel ignored this lack of jurisdiction. Jurisdiction was artificially created by a state-sponsored criminal act of abduction prohibited in all national and international law. The Israeli court assumed jurisdiction on the basis of the presence of Eichmann before the court. The court conveniently avoided the legal issue as to how this foreign national was brought before the court. Was the means of bringing the accused before the court legal? The court did not care about this substantive legal issue. Had the criminal act of abduction not been committed by Israeli intelligence, the court would have no scope to exercise its jurisdiction over Eichmann.
This trial, because of its unprecedented due process deficits, attracted many academic attention and these scholarly research writings are readily and publicly available. Seemingly the writer of Economist did not care to consult these scholarly views, some of them claiming that everything was done to guarantee a conviction that would have been unsustainable on appeal. This is what Economist views as the 'model of meticulous process' and 'Israel's model of due process'. Indeed, it is a due process in Israeli style. Thanks God, Bangladesh ICT did not follow the Israel's model of due process and justice.
It is on public record that the defence has been pursuing a policy of dilatory tactics to prolong the trials in Bangladesh. Defence lawyers are frequently absent and facing fines for their unexplained and unreasonable absence. Due process must be adhered to in good faith not only against those who undermine it but also against those who abuse it. In the ongoing trial of Radovan Karadzic (Bosnian Serb wartime president) before the ICTY, he asked for 300 hours to prove his innocence, which the ICTY rejected instantly and granted 150 hours to prove his case. One has to bear in mind that these ICT trials are not normal criminal trials before ordinary criminal courts. These are trials for extraordinary crimes at international law, which cannot continue endlessly. Moreover it is not only the defence that is entitled to the due process of law. The prosecution and victims of those alleged crimes are also entitled to the due process of law. The Bangladesh ICT has been striking a fair balance between the competing interests.
International crimes and their trials have been seen over the history as special in nature and as such no appeal lies in normal courts. Most past international crimes trials by ad hoc tribunals had no appeal provision. Bangladesh is the first ever exception which allows appeal to the Appellate Division of the Supreme Court against ICT judgments. The appeal provision in section 21 of the ICT Act 1973 is unique and a departure from the relevant international practice that has taken the due process of law to a new height, a point that Economist conveniently ignored. Going back to the due process in the Eichmann case, there was no scope for appeal, which Economist did not tell us. Obviously Economist's model standard of due process does not require such a check. For the sake of argument, even if it is conceded that there are due process irregularities in the ICT trials, the defence has every right to plead them in appeal proceedings before the apex court of the land.
The Economist alleged government interference 'in the court's deliberations', which is too vague to understand. Does it mean government ministers sat on the bench or participated in the deliberations in writing the judgment and/or conviction? Economist is silent on explanation or example. The fact that the prosecution has appealed a conviction (Mollah) suggests that the ICT is conducting the trials and deciding the outcomes at arm's length from the government. Economist turned a blind eye to the rampant interference with the trial process and the ICT by supporters of the convicted and alleged accused and their Middle Age brutality to evade justice.
Economist said that 'now the government wants to rewrite the law to allow death sentences to be applied retrospectively'. This is a blatant lie that only represents yellow journalism. What the government recently (February 2013) did was an amendment to the appeal provision of the 1973 Act. The previous appeal provision suffered from the lack of parity of appeal right in that it offered the losing party an unqualified right to appeal but the winning party had only a qualified right to appeal, which was discriminatory and unjust in any standard. Through the recent amendment, Parliament has merely addressed this anomaly in the legal right to appeal. If it is argued that this amendment and its retroactive application would compromise the due process, it must also be noted that the previous imbalanced appeal arrangement significantly militated against the due process to which the winning party was entitled to. This recent amendment was in order and indeed imperative to render justice and the due process to all parties equally.
Parliament can enact law regardless of what is going on in the judiciary under the constitutional principle of the separation of power. The history of the common law is littered with examples of parliamentary amendments on matters under judicial consideration. Australian Parliament for example amended the Australian Migration Act many times whenever refugee claims are filed with the High Court of Australia. In the Teo case 1994, Australian Parliament even made to halt the execution of the judgment of the High Court on a matter that Parliament was then contemplating to legislate.
There is nothing wrong in law to try international crimes by establishing exclusive domestic special courts or tribunals. International criminal law and the Statute of the International Criminal Court (ICC Article 17) promote such trials to maximise justice for victims of heinous crimes and minimise the impunity of their perpetrators. All such trials in history have been different, unique, and case specific. They were created to try a particular event of the commission of international crimes. As a result, their charters of mandates and powers have been tailored to cater for a specific case and one is not necessarily worthy of adoption in another. The Nuremberg and Tokyo tribunals' charters dealt with the identical Nazi crimes committed during the Second World War but the contents of these charters were different because Hitler, the head of the German state, was dead but the wartime emperor of Japan was alive, who was entitled to sovereign immunity. Similarly, the charters of Bosnian (ICTY) and Rwandan (ICTR) tribunals were negotiated and enacted in the UN Security Council but their contents are different because the Bosnian conflict involved independent state parties to make it an international conflict. Whereas the Rwandan genocide was between two internal tribes (Hutu and Tutsi), rendering it an internal conflict. The statute of the Special Court of Sierra Leon was specially crafted to trap Charles Taylor, the Liberian President, now languishing in a British jail. If these international crimes and their trials can be different, so can the Bangladesh ICT and its trials.
I can go on with all eight special tribunal charters since the Nuremberg to reveal their uniqueness, which defies the development of any common standard. It is this lack of common standard in ad hoc international crimes trials that led the international community to establish the permanent ICC. Therefore, the claim of an international standard, which the Bangladesh ICT is failing as alleged by Economist, is a myth and misnomer. Such a fictional standard does not exist in reality. Recently, the Cambodian genocide trial has been progressing at a snail pace allegedly due to political interference, which apparently resulted in the death of an alleged accused on trial. This raised considerable public antipathy towards the slow progress of the trial. We hear nothing about this trial from Economist because neither Khmer Rough or its leader Pol Pot is alive; nor are there any resource-rich Khmer Rough followers, unlike their counterparts in Bangladesh.
I am aware of the freedom of the press and do not oppose the idea of tolerance that freedom of expression warrants us to listen to things that we dislike or views that we disagree. This freedom must be guarded not only against its deniers and suppressors, but also against its abusers and misusers. The piece in Economist (23 March 2013) displayed absolute arrogance of ignorance of law and facts at its best and deliberately distorted them for deception at its worst. Restraining 'Ali Babas' does not mean restraining their 'forty-robbers', who are at large at both home and abroad with their full force of financial clout. Mercenary campaigns are therefore expected and will indeed intensify as the Bangladesh ICT progresses with further judgments.
The author is Professor of Law at Macquarie University, Sydney, Australia.
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