New ICT rules give accused ‘universally recognised standards’

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Date : Monday, 4 July 2011
Author : David Bergman
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The International Crimes Tribunal has introduced amendments to its rules of procedure which provides the people detained by the tribunal with new rights relating to bail and additional protection concerning the presumption of innocence.

The amended rules of procedure, which was gazetted on June 28, also gives the tribunal the power to review its own decisions and to pass orders relating to the protection of witnesses and victims.

The tribunal registrar, Md Shahinur Islam, told a press briefing on Sunday that the amendments would help to ensure that the trials of the people accused of international crimes committed during the 1971 war would take place under ‘universally recognised standards.’

‘International standards, we are not yet there,’ he said. ‘But I would say that the tribunal rules [and law] now match universally recognised standards of due process and justice.’

At the end of March,

Stephen Rapp, US ambassador for war crimes at large, sent a letter to the Bangladesh law minister and foreign minister suggesting changes he considered should be made to the then existing rules of procedure so that ‘its proceedings are independent, fair, and uphold international standards.’

The tribunal registrar said that he thought that the new amendments would ‘at least make the rules consistent with the concerns of Rapp.’

He, however, added that he ‘could not say’ what the ambassador-at-large’s view of the amended rules might be.

Islam emphasised that the tribunal in question ‘was not an international tribunal. It is a national tribunal prosecuting international crimes…. It is now a settled axiom that the International Criminal Court is neither designed nor intended to supplant independent and effective domestic judicial systems.’

Abdur Razzaq, an executive committee member of the Bangladesh Jamaat-e-Islami, however, said that he was ‘totally disappointed’ by what he had heard about the amended rules saying that they did not go far enough.

Five of the Jamaat-e-Islami leaders are currently detained by the tribunal.

The amended rules provide new protections for those detained by the tribunal.

An accused person who has been detained in prison for a year pending an investigation of offences alleged to have been committed during the 1971 war should from now on, ‘except in exceptional circumstances,’ be released on conditional bail if the investigation has not been completed in this period.

If the tribunal considers there to be ‘exceptional circumstances,’ the new rules say that it may extend detention for ‘a further period of six months.’

The new rules of procedure also allows both the defence and prosecution lawyers to ask the tribunal to review any of the orders that it has given ‘including the order of framing charges.’

Neither party is, however, able to seek a review of the tribunal pre-conviction ruling, including that of bail, from an appellate court.

The new rules also give some additional protections to an accused when charged with an offence.

An accused person pleading not guilty will get ‘at least three weeks’ time for preparing prepare his defence,’ and ‘shall be presumed innocent until he is found guilty.’

The amended rules also explicitly state that the prosecution must prove its case ‘beyond reasonable doubt’ and that the ‘mere failure’ on part of the defence ‘to prove the plea of alibi’ should not itself ‘render the accused guilty.’

They also allow the tribunal to pass orders ‘to ensure [the] protection, privacy and wellbeing of the witnesses and victims’ including arranging accommodation, and ensuring their security.

The new provision states that an application for an order by the tribunal can be made to the tribunal by either the defence or prosecution and the process will be ‘confidential and the other side will not be notified.’

The new rules do not, however, respond to a number of the suggestions of Rapp, including concerning the right of parties to make ‘interlocutory’ appeals of tribunal orders to another court, requiring the courts be ‘guided by the ICC’s [International Criminal Court’s] Elements of Crimes’ which set out the meaning of particular offences, and proposing that the tribunal should follow case law from the ICC relating to the use of evidence.

In a development on the existing legal procedure in Bangladesh, the amended rules require that a magistrate ‘shall allow the engaged counsel for the accused to be present’ at the time of recording any confessional statement although the lawyer was not allowed to speak or interfere.

The tribunal registrar said that this rule was included to prevent the possibility of coercion or torture on part of the investigation officers.

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This item has been recorded here as part of ICSF's Media Archive Project which is a crowd sourced initiative run by volunteers, a not for profit undertaking to facilitate education and research. The objective of this project is to archive media items generated by different media outlets from around the world - specifically on 1971, and the justice process at the International Crimes Tribunal of Bangladesh. This archive also records items that contain information on commission, investigation and prosecution of international crimes around the world generally. Individuals or parties interested to use content recorded in this archive for purposes that may involve commercial gain or profit are strongly advised to directly contact the platform or institution where the content is originally sourced.

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