Full text of ICT prosecutor Advocate Zead-Al-Malum’s speech before EU Parliament’s Delegation on South Asia explaining the nature of the International Crimes Tribunal, its operations, and the safeguards that are built within the process to protect the human rights of the accused who are now on trial.
A meeting by concerned Members of European Parliament (MEPs) constituting the “Delegation for relations with the countries of South Asia” was held at the European Parliament premises in Brussels on 31 January 2012. The title of the delegation meeting was “Bangladesh: exchange of views on the war crimes trials and on accountability issues”, which was aimed at discussing some of the criticisms and concerns that have so far been raised by the defence and certain other groups before various national and international forums including the European Parliament. Among the invited speakers in this delegation meeting, Zead-Al-Malum, a senior member of the prosecution team of the International Crimes Tribunal, was present to respond to some of these criticisms and concerns and explain how the justice process in Bangladesh is actually operating to protect the rights of the accused, which the propaganda material forwarded by the defence do not mention. Among the other speakers, Mr Toby Cadman, who is serving the defence team as an international counsel was also present. The text of Mr Malum’s speech, which now forms part of the record of the EU proceedings on the matter, is presented below:
Meeting on Bangladesh: Exchange of Views on War Crimes Trials and on Accountability Issues
The Delegation for Relations for the Countries of South Asia
31 January 2012
Room Altiero Spinelli (ASP) 1E-2
Presentation of -
International Crimes Tribunal, Bangladesh
Honourable Members of European Parliament, Excellencies, ladies and gentlemen:
1. First of all, let me thank the European Parliament, Members of its South Asian Delegation, for allowing me to speak before you, and also for your continued support for the justice process in Bangladesh. I recall with appreciation the European Parliament’s number of resolutions including the one in 2005 reiterating ‘support for the demand that those known to have participated in the massacre of Bangladeshi citizens and other war crimes during the Bangladeshi liberation war of 1971 be brought to trial’. I thank you for that.
2. I also thank International Committee for Democracy in Bangladesh (ICDB) and Bangladesh Support Group (BASUG) for facilitating my participation and presence in today’s important meeting before this esteemed panel.
3. It is indeed an honour to be here and speak on behalf of the prosecution team of the International Crimes Tribunal in Bangladesh. I will try to keep my presentation brief.
The 1973 Act and setting up of the International Crimes Tribunal
4. As you are aware, it took 41 years to initiate this justice process to end impunity for the core international crimes committed in 1971. The then newly independent Government of Bangladesh passed a law called the International Crimes (Tribunals) Act in 1973 (hereinafter the “Act”) to investigate and prosecute the persons responsible for genocide, crimes against humanity, war crimes and other crimes under international law committed in 1971. The Act is a complete law in itself, providing the substantive law, definition of crimes, procedures to follow, provisions of evidence, constitution of the Tribunal, obligation of the Judges to be independent and to ensure fair trial standards, including the rights of the accused, rules to monitor investigations and interrogations, supervising arrest and viability of continued detention, rules to protect the witnesses and victims, rules regarding appeal after conviction, and the rule making authority of the judges etc.
The Judges, Prosecution Team and Investigation Agency
5. Under the Act, the International Crimes Tribunal was set up by the Government of Bangladesh in March 2010 when the Judges of the Tribunal were appointed. Two of the three Judges are serving Judges of the Supreme Court of Bangladesh and the third Judge possesses 30 years of trial court experience at the district court level and is qualified to be Judge of the Supreme Court. At the same time, the Government set up the Prosecution Team and the Investigation Agency of the Tribunal and appointed Prosecutors and Investigators respectively.
6. The Prosecutors of the International Crimes Tribunal are all experienced lawyers with a significant number of years of court experience. They are well versed in criminal law and possess considerable expertise at handling criminal trials. In the past two years, these Prosecutors have also enhanced a great deal of understanding and knowledge over the theories and concepts surrounding international criminal law and how trials of persons alleged to have committed core international crimes, have been held across the globe. This has been made possible due to the varied exchanges and collaborations between the Prosecution Team as well as the Investigation Agency with many international and national bodies, groups, governmental agencies etc. that are all concerned stakeholders in the process of bringing an end to impunity.
The cases before the Tribunal
7. Eight separate cases are now being tried before the International Crimes Tribunal. All cases are each at different stages of the legal process. Currently, witnesses are being heard by the Tribunal in one case in which the accused has been indicted, while the six other cases are in their ‘charge framing stage’ which is the stage prior to indictment. In one case, the accused is still being investigated.
True nature of this justice process
8. It is important that we understand the true nature of this ongoing process. The Act itself is a domestic law, passed by the Parliament of Bangladesh. It needs to be clarified that this justice process was never part of any intervention by the international community, nor a result of any international compromise, unlike most justice initiatives of its kind that have taken place in the international arena. The justice process that this Act envisaged setting up is purely a domestic process. This means, as I need to categorically stress, is that this Tribunal in Bangladesh is not an ‘international’ Tribunal. The only international element in the scheme of things is the nature of the offences, that is, the “international crimes”. Although these crimes, due to their nature and trajectory of developments, have historically been a part of international criminal law, the Act internalised these crimes and thus made them a part of the jurisprudence of the Tribunal and of Bangladesh’s legal system.
Independence of the Tribunal and presumption of innocence
9. The Tribunal is independent and the Judges of the Tribunal are required by law to ensure fair trial [section 6(2A)]. The accused individuals are ‘presumed innocent’ until proven guilty ‘beyond reasonable doubt’ – such is the high threshold of guilt to which this process has to adhere to.
Safeguards during detention, investigation, and practice of bail
10. During investigation at the pre-trial stage, the Act and its Rules put in a number of safeguards to protect the rights of the accused. For example, unlike many other international forums, the accused before the ICT cannot be kept in custody for a long period. The law specifies that the accused shall be tried without undue delay [Rule 43(5)]. Not only that, the Prosecutors are required to submit periodic reports on the progress of the case so that the judges are satisfied of continued detention of the accused. Usually the accused who are under investigation, are kept in custody, in order to prevent interference with the investigation, tampering with evidence, coercion of witnesses etc. Even then, one of the eight accused, ie, Abdul Alim, has been enlarged on bail during the whole investigation period, though there was no express provision in the Act. The judges simply granted the bail out of their commitment to protect the right of the accused. In another case, the accused, i.e, Golam Azam, was not even arrested during the whole period of investigation, considering his age, he was only detained after the prosecution filed charges against him of which the judges were satisfied. In this case too, the Act did not expressly allow anyone to be free during the investigation stage, but the Tribunal used its discretion nevertheless.
Safeguards during interrogation
11. The law provides that the accused who are under investigation could be interrogated by the investigators and prosecutors. However, according to the law, any statements made or information given by the accused during such interrogations cannot be used against the accused or be adduced as evidence during the Trial. Through this, the law protects the accused from self-incrimination and effectively removes the incentives for coercive treatment of the accused. While granting the permission to interrogate, the Tribunal has repeatedly stressed on putting in place such extraordinary mechanisms, which are – a) – not foreseen in the Act, b) not practised or available for other accused in Bangladesh, and finally c) not even provided to the accused in any of the other South Asian countries. During every interrogation, the Tribunal ordered that the accused’s counsel and a doctor be present at the place of interrogation, and both the lawyer and the doctor will be allowed to consult and examine the accused during intervals. The judges of the Tribunal, as a practice, have been very restrictive in granting such interrogations. The Prosecutors and Investigators are only allowed to interrogate the accused only once, and that too for a limited hours during the day set by the Tribunal. In one case, the Tribunal allowed such an interrogation but required that the same has to take place only in the comfort of the home of the accused where he was on bail, in the presence of his physician and lawyer. I do not know whether in any other jurisdiction the judges have allowed the interrogations to take place under such conditions. This is how the accused individuals are treated by the International Crimes Tribunal of Bangladesh.
Right to be heard, to defend, protection from self-incrimination, and alibi
12. All the standard fair trial safeguards are afforded to the accused. I have already mentioned earlier about the “presumption of innocence” and “beyond reasonable doubt” threshold. In addition, the law is very clear that an accused cannot be tried twice of the same offences. Every accused before the Tribunal, as of right, is entitled to a fair and public hearing where he is allowed to defend himself. Such hearing/defence can be conducted by an engaged lawyer of his choosing who is legally authorised to appear before the Tribunal. The bottom line is – the accused cannot be punished without being given an opportunity to be heard or, as already mentioned, shall not be compelled to testify against his will or confess his guilt. Even in cases where the plea of alibi of an accused fails, the law is very clear that such a failure cannot be used against the accused.
Standards of evidence, witness/victim protection for both parties
13. In case of admissibility of evidence, 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 justice process led by this Tribunal, is also unique and path breaking in another respect. This Tribunal, for the first time in Bangladesh’s legal history, has introduced and put in motion a “witness and victim protection” regime which is available to both prosecution and defence. No other victims and witnesses in Bangladesh before other courts get the kind of protection that this Tribunal affords. In addition to ending impunity and ensuring accountability for the crimes committed in 1971, such a regime of witness and victim protection, in my opinion, will probably be this Tribunal’s lasting legacy advancing the criminal justice administration in Bangladesh.
Open public hearing in the presence of international observers and the media
14. 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.
Adequate opportunity for the parties to raise legal and other challenges
15. So far, the defence has filed multiple challenges before the tribunal, ranging from bail petitions, indictment order, charge orders, and challenges to the Act to even of recusal of the Tribunal Chairman. The Tribunal, patiently and meticulously heard every petition and application before deciding on them within the bounds of law. The point is, neither the defence (nor the prosecution) is restricted from putting their objections on record and every party is getting their day in the court, which I already mentioned is an open one attended by members of the public.
Trial before a mature forum, finding of guilt, proportionality requirement of sentences, and provision of appeal
16. Even when an accused is found guilty and convicted, the law is very clear as to the scope of the sentence as the law requires 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. This is how, the punishment and sentences has to be justified. The accused can appeal the conviction before the Appellate Division of the Supreme Court, which happens to be the highest court of Bangladesh. Here it needs to be pointed out that although the Tribunal, by nature, is a trial court, it is like no other trial courts in Bangladesh. In the International Crimes Tribunal – hearing of motions and petitions, monitoring progress of investigations and the safety of the accused during interrogations, admission of evidence, ensuring protection of witnesses and victims for both the prosecution and defence, deciding on guilt and passing of sentences – are all determined and adjudicated by a panel of judges who are very high in rank and rich in experience, maturity, and judicial prudence which are unmatched to any other trial courts in Bangladesh. As mentioned earlier, the current Tribunal is constituted by two sitting Supreme Court judges accompanied by one very senior District Court judge with 30 years of adjudicative experience in the trial courts.
17. Bangladesh has a well-established and smooth functioning legal system and a rich legal culture which shares its heritage with the other commonwealth nations. The international community had never any reason to be concerned about the standard of Bangladesh’s legal system, as evidenced from the numerous reports. The justice process facilitated by this International Crimes (Tribunals) Act of 1973 and by the International Crimes Tribunal – is, you may say, a part or an extension of that rich legal heritage. As a Prosecutor, and as an Advocate who has over 30 years of legal practice in Bangladesh, as a human rights lawyer and defender who has spent most of his life and career defending the rights of others, I can assure you that my team members and I are all committed to do our best to ensure justice, that is not for the victims only, but also for the accused. In that we need your understanding and support as you have extended in the past. We do understand that a meeting as brief as this may not be sufficient to explain a justice process, nor to understand it fully. So, please do not hesitate to direct your queries, comments and concerns to the Prosecution Team of the International Crimes Tribunal, to which we would be happy to respond. We are aware what a momentous task we all have undertaken to end an impunity that lasted 40 long years, that is why we appreciate and value such engagements.
Thank you for your time and attention.