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The Canadian lawyer, who dealt cases of Rwanda Genocide and Nazi war criminals. made the remarks during an exclusive interview with The Daily Star on the sideline while attending the Second International Conference on genocide, truth and Justice on July 30 31.
Lauding amendments to the International Crimes Tribunals Act. 1973, David Matas said the principle of the law Is very good but the rules of the law must be more specific.
On the act's Jurisdiction to try only the perpetrators within the territory of Bangladesh, he said Bangladesh could try the Pakistani perpetrators only If they showed up here.
“But. that is not likely. So, Pakistan should bring the war criminals living in its land to justice. It is Pakistan's responsibility." said David Matas, representative of the International Commission of Jurists.
In the case of Sierra Leone, crimes committed by foreign peacekeepers fall within the primary jurisdiction of the foreign state, he said, adding: “If such a state is unwilling or unable to investigate or prosecute the crime against any suspect, the special court may investigate and prosecute the individual provided it has the authority of the Security CounciL"
The legal expert said as war crimes trial waited too long, memories of many witnesses might have withered away or many accused or witnesses died. But, he said, the women who might have been timid witness as young girls immediately after tortures will be courageous now to witness at their fifties or sixties.
The trial process, however, would be more justice-based than politics-based now because of change in political dimension. But. the trial could create serious public discontent if due process is not maintained, he cautioned.
Interlocutory appeals are a primary cause of delays in international criminal trials, he said, adding: “If each ruling can be appealed and the trial held in abeyance in the meantime, the trial can take forever."
The International Crimes Tribunal Act 1973 provides for right to appeal against conviction and acquittal, but these provisions do not address directly the issue of interlocutory appeals, said the jurist based in Winnipeg, Canada.
The International Criminal Tribunal for former Yugoslavia resolved this problem with a rule that interlocutory appeals were impossible with two exceptions one was motions challengingjurisdiction, while the other was cases where certification has been granted by the trial chamber.
A way to save time could be allowing witnesses to file evidence in court through written statements, rather than requiring witnesses to testify in the open court. David said, suggesting that a robust doctrine of judicial notice to avoid repetition of cases of the same events can also save time.
He said the trial chamber
might decide to take Judicial notice of adjudicated facts from other proceedings of the tribunal relating to the matters at issue In the current proceedings. “This is an Innovation for international tribunals."
“The prosecution will have to choose strategically. Massive crimes require mas-s I v e participation. Proceedings all at once with every possible case is likely to be unmanageable,'" David said, suggesting developing criteria to choose cases.
Besides, the accused directly responsible for grievous actions should be given priority over those who merely aided and abetted, he said.
The legal expert said the International Crimes Tribunal Act 1973 Is silent on some Issues. For example, he said, cases are being launched in the regular courts about the 1971 genocide, but there is no provision what happens to these cases when the international tribunal gets going. There has to be a decision about it. he noted.
David Matas said though Bangladesh waited for too long for the trial, one of its advantages is that many other international tribunals have already sprung up. “They have accumulated experience from which Bangladesh can learn."