Some inconvenient facts for the critics of Bangladesh ICT

Critics often accuse the Bangladesh international crimes trials (ICT), being exclusively domestic without any international/UN involvement, are a recipe for injustice. Here I briefly highlight some monumental failures of international and mixed tribunals. Polarised international politics, dogmatic self-interest, and resource constraints have circumscribed the effective functioning of these international and mixed tribunals, which are conveniently ignored or overlooked in the relentless criticisms against the Bangladesh trials.
Let me begin with Nuremberg. The US, UK, France, and Soviet Union drafted the Nuremberg Charter under the London Agreement 1945, created the Tribunal, appointed  tribunal judges, one from each, and controlled its operation. All prosecutors were from the Allied powers. All defence lawyers were German and had limited access to facilities to prepare their cases. The jurisdiction of the Tribunal extended only to the trials of the war criminals from European Axis states to the exclusion of alleged war criminals from the Allied Power. All these provisions were designed to legitimise the punishment of the Nazi leaders with no pretence of fairness and impartiality.
The trial clearly violated the due process principles by prejudgment of guilt, limited procedural rules that inadequately protected the rights of the accused, judicial biasness, lack of procedural equality between prosecution and defence, some trials were held in absentia, no right to appeal and/or review (Art 26), and the unavailability of certain defences to the defendants. Prosecution introduced ex parte (one party) affidavits against the accused regardless of any legitimate objections. The accused attempted in vain to raise the defences of ex post facto (after the fact) application of law in that there could be no punishment of crime without pre-existing law. These irregularities and inadequacies pervaded the trials, which appeared more of a political than judicial exercise.
Western states remain hostile to the ICC and resistant to surrendering their nationals. The US Service Members Protection Act 2002 prohibits US cooperation with the ICC and grants the President power to 'use all means necessary' to secure the release of US nationals or allies if detained by the ICC (s 2008:a). The US intimidated states to sign bilateral treaties preventing ICC parties from surrendering to the ICC any US national guilty of ICC crimes. The US and European NATO members are free to commit ICC crimes in Iraq and Afghanistan, Russia in Chechnya and Georgia, China in Tibet, and Israel in the occupied Palestinian territories with complete impunity.
The ICC jurisdiction seems to be operating only in weak states, not in powerful states and their allies. The ICC Prosecutor has failed to undertake any investigations beyond Africa. The ICTY and ICTR are UN tribunals operating with adequate resources under favourable conditions in The Hague with no connection whatsoever with the nationals and victims of the territories and actual place of the commission of the crimes. It appears patronising that the UN runs these tribunals outside the countries affected and without their participation, creating almost no enduring social impact. East Timor and Cambodia addressed this failure by establishing in-house hybrid courts with the UN partnership.
The East Timor Panels suffered from resource limitation and politics of cooperation and could not try many alleged accused, who were the nationals of Indonesia, which declined to turn them over to East Timor or the UN. This was a parallel situation with the Bangladesh tribunals, which cannot try the alleged Pakistani war criminals for want of cooperation from Pakistan. Of 400 indictments, there were only 55 trials involving 88 accused. The UN in 2004 abruptly stopped funding when there were 514 investigated outstanding cases and 50 cases under investigation. The inability of the Serious Crimes Unit to investigate the charges against many serious crimes detainees led to their large scale release in 2000. Several appeal cases remained unfinished. Many in East Timor felt let down and betrayed.
The ongoing Cambodian trials also suffer from both resource constraint and tension between its national and international divide. Chronic delays, political tension, and funding crisis hang over the Chambers, which struggle with Case 002 after the death of its prime accused Ieng Sary with bleak prospect to proceed with Cases 003 and 004. The trial proceedings for expert witnesses came to a halt on 4 March 2013 when the translation and interpretation unit stopped working for unpaid salaries, resulting in indefinite recess of trials. Funds for the international side ran out in 2012, caused hiring freeze, and non-renewal of existing contracts resulting in staff uncertainty and loss.
 The International Co-Investigating Judge Ansermet (Switzerland) resigned in April 2012 and it took five months to appoint a successor (Mark Harmon of US) in October 2012. These successive delays and interruptions in trials have raised considerable public antipathy and denied justice to many victims of the Khmer Rouge.
The unreasonable delay in conducting the Slobodan Milosevic trial was largely responsible for his death on 11 March 2006 after more than four years of trials. His death in the UN Detention Unit at The Hague raised worldwide concern about the propriety of his trial as to whether the trial could have been done expeditiously in the interest of justice and fairness to the victims. Similarly the death of Ieng Sary, who played an important leadership role as the foreign minister and standing committee member of the Khmer Rouge, has significantly diminished the Khmer Rouge crimes on trials. This failure has been frustrating for the victims of the Khmer Rouge. It was abundantly clear from extensive public documents available prior to the start of the trials in 2006 that Ieng Sary was a prime target for prosecution, yet the mixed Chambers with active UN presence failed to complete the trial before his death in 2013.
Since the charges against Slobodan Milosevic and Ieng Sary terminated by their death, they remain legally entitled to the presumption of innocence. Their accountability for heinous crimes continues to enjoy impunity and their victims continue to be deprived of their right to justice forever. The cardinal goal of these trials was made subservient to lengthy due process only to attain so-called procedural justice at the cost of substantive justice for their crimes.
Given these failures of international and mixed tribunals, the role of national tribunals in ending the safe haven and impunity of perpetrators is being increasingly appreciated. National trials are in proximity to the victims, which renders the pursuit of justice more meaningful to the country.
The ICTs operating within Bangladesh and in proximity to the victims render the pursuit of justice a more meaningful exercise. The ICTs whose primary audience is the local population have been a rewarding experience of local ownership and empowerment in seeing justice done and creating a lasting impact. The ICTs, being free from external politics, control, and resource dependence, have better prospect of maximising justice for the victims and minimising the impunity of perpetrators on a continuing basis.
International criminal law promotes international crimes trials by national courts. The relationship between international and national criminal jurisdictions is mutually supportive to each other in maximising justice for victims and minimising impunity of perpetrators. Article 17 of the ICC Statute expressly endorses the complimentarity between the ICC and domestic jurisdictions of states.
Bangladesh, with its long-standing and established common law tradition and capable criminal justice system, fulfils the ICC conditions of political willingness and judicial ability to try international crimes more convincingly than the current Libyan judiciary, which is now trying Saif-al-Islam Gaddafi despite his indictment by the ICC for allegedly committing war crimes during the Libyan revolution in 2011.
International political appetite for justice has been short-lived in East Timor and Cambodia, entrenching rather than combating impunity. Justice has been elusive to many victims. Have the UN, US, EU, and other critics of the ICTs ever raised their voice against the demonstrated failures of their own making in international and hybrid trials? Would their involvement in the Bangladesh trials have been any different from the fate of the East Timor and Cambodian trials? Their self-serving politics of cooperation would have been stultified the progress of the Bangladesh trials, which have some very old-age accused and could have faced the same result as the Slobodan Milosevic and Ieng Sary trials.
The principled-position of some human rights NGOs and the EU against death sentence is understandable. But the frequency and intensity in which they have displayed their sustained criticisms against the capital punishment of the 1973 ICT Act and death sentence to Mollah in contrast to occasional whisper against death penalties in the US, Saudi Arabia, and other states expose their double standard. Even in Bangladesh, past death sentences and very recent death sentences to 8 convicts in the Bishwajit case have not seen the same level of roaring criticisms from these NGOs and the EU? Why are the ICTs and Mollah execution singled out? Does something sinister lie beneath their principled-opposition to capital punishment?
Pakistan in its state-capacity committed international crimes in 1971 and preserved the impunity of its war criminals in defiance of the findings and recommendations of its own Hamdoor-ur-Rahman Commission Reports 1972 and 1974. It also expected the continuation of the same impunity for the Bangladeshi accused and convicts, who committed these crimes on behalf of Pakistan. With the past heinous Armenian genocide and recent ruthless massacre of Kurdish self-determination to their credit, Turkey and its Islamist leaders find it expedient to support the Bangladeshi war criminals. Pakistan, Turkey, and Jamat are the birds of the same feather due to their politico-religious affinity and their opposition to the Bangladesh international crimes trials is merely a foregone conclusion.   
The establishment and operation of the ICTs in Bangladesh is perfectly legal. What makes it an easy target of criticisms is the government's initial underestimation of the political and financial clout of Jamat at home and abroad. International critical narratives of the Bangladesh trials are attributable also to the well-resourced lobbying network of Jamat as opposed to the apparent public inaction of Bangladesh missions around the world.

THE WRITER IS PROFESSOR OF LAW, MACQUARIE UNIVERSITY, SYDNEY, AUSTRALIA