adequacy of war crimes law: EU diplomats in Dhaka divided
A difference of opinion has surfaced among Bangladesh-based European diplomats about what public position the European Union should take on the adequacy of the International Crimes (Tribunal) Act 1973.
The 1973 act governs the powers of the International Crimes Tribunal which was set up by the government earlier this year to prosecute the people accused of war crimes and other international crimes during the 1971 independence war of Bangladesh.
Andrew Barnard, the chair of the European Union’s Human Rights Task Force which comprises EU diplomats based in Dhaka told New Age a month ago that although there may be some ‘technical’ shortcomings in the legislation, they ‘will not necessarily lead to a miscarriage of justice.’
This is the first time that a senior European Union diplomat had publicly given the legislation conditional international support and the view will be seen as controversial given that the legislation has been widely criticised by international lawyers outside Bangladesh including senior judges and prosecutors from the International Bar Association’s War Crimes committee.
Diplomats based at embassies belonging to different European countries were surprised at Barnard’s statement and emphasised that the Human Rights Task Force is simply ‘an informal Dhaka-based grouping that discusses policy and shares ideas,’ and that ‘the EU has yet to come to a formal, collective position on the war crimes trials.’
On hearing the position given by the task force, one senior German embassy contacted Andrew Barnard, who is also the head of the political, trade and information section of the European Union, and asked him to send a revised statement to New Age.
Andrew Barnard stated in his subsequent e-mail that ‘Rolf [dieter Reinhard] asked me to clarify to you the stance of EU diplomats in Bangladesh on the War Crimes trials.’
The e-mail went onto set out to set out the new position. ‘It is for Bangladesh to decide whether to bring perpetrators of crimes during the war of independence to trial. The EU would however urge Bangladesh to ensure that trials meet international standards for fair judicial processes.’ Significantly, it omitted any assessment of the 1973 act.
In contrast, a British High Commission official told New Age that the British government accepts the criticisms of the 1973 act made by international lawyers.
Jon Ryan, political and global issues secretary, told New Age, ‘We concur with the opinion of the IBA’s War Crimes Committee, i.e, that whilst the 1973 act is “broadly compliant” with international standards, we would want to see the adoption of the [committee’s] 17 recommendations.’
However, he went onto state in an e-mail, ‘Whilst we attach significant weight to the [IBA’s] opinion, we are not saying that trials cannot be held to international standards without the wholesale adoption of all recommendations. Much will depend on how the trials are conducted once they begin.’
This view differs from either of the statements given by the EU diplomats in that it accepts certain changes are necessary for the 1973 act to allow for a fair trial.
Barnard told New Age that the Human Rights Task Force came to its ‘consensus’ view that the 1973 act ‘will not necessarily lead to a miscarriage of justice,’ following meetings in the summer of 2010 with three ‘experts’— MA Hasan, the chair of the War Crimes Facts Finding Committee, Adilur Rahman, the secretary of the human rights organisation Odhikar and Shahdeen Malik, advocate of the Supreme Court.
‘We did not think it necessary to meet international law experts,’ Barnard said.
Both Hasan and Adilur Rahman, however, told New Age that they did not tell the task force that the 1973 act was adequate. Hasan said that he told the EU members that in order ‘for the trial to be fair it needed modification.’
Adilur Rahman said that he did not give his view about the adequacy of the legislation, ‘as I am not in a position to give one. I am not an expert on this issue.’
Shahdeen Malik was not available to comment but he is previously reported to have said that the 1973 act is adequate to provide for a fair trial.
Abdur Razzaq, one of the senior lawyers acting for the five Jamaat-e-Islami leaders currently detained by the International Criminal Tribunal, told New Age that he was not impressed by the level of expertise consulted by the European Union. ‘How can these three people be war crimes experts? The European Union is expected to have better standards.’
The apparent divergence of position within the European Union comes at a time when the Bangladesh government has invited Stephen Rapp, the US War Crimes Ambassador at Large, to come to Dhaka to provide the government assistance with war crimes.
New Age has previously reported that the invitation is seen by the diplomatic community in Dhaka as recognition that the Bangladesh government has begun to acknowledge that changes to the legislation are necessary.
The International Bar Association’s advice on the 1973 act stated that there were ‘significant omissions’ regarding protection of rights of the people on trial and ‘out of date’ definitions of war crimes.
The Government has rejected the criticisms and pointed to the fact that the IBA’s advice also states that the legislation ‘provides a system that is broadly compatible with current international standards’.
The International Crimes Tribunal was established by the government in March 25, 2009 and since then five men, all Jamaat-e-Islami leaders, have been detained by the tribunal on accusations of war crimes.
The tribunal on December 30, 2010 passed an order requiring the BNP standing committee member Salauddin Quader Chowdhury to be produced before the tribunal on January 17.