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War Crimes Legislation

West backs trial, int'l norms

Staff Correspondent
Western diplomats remain concerned that unless the government further amends the International Crimes (Tribunals) Act 1973, the trials of war criminals may not meet the minimum international standards of due process and fairness.
The concern was expressed to The Daily Star by diplomats supportive of the Bangladesh
government's decision to hold trials of people alleged to have committed war crimes during the 1971 War of Independence.
These views appear to contradict Law Minister Shafique Ahmed's repeated statements that that the current law is sufficient to meet international expectations.
In a series of interviews with The Daily Star, the western diplomats were unanimously supportive of the government's intention to hold the trials. "We accept that the culture of impunity that exists now in Bangladesh started with the crimes committed in 1971 and the lack of accountability following them. The country will not come to rest until these issues are settled," said one diplomat.
"We accept that the trials are important to deal with an unfinished chapter of Bangladesh and the culture of impunity," another stated.
However the diplomats made a clear distinction between support for trials in principle and support for the trial process. All the diplomats spoken to emphasised that the trials must be held 'in the right way' and that international norms must be adhered to'. And they were concerned that the recent amendments by the government to the International Crimes (Tribunals) Act 1973 are not significant.
Three months ago, following a consultation process involving Bangladesh Law Commission, the government passed legislation amending the 1973 Act. These amendments will allow individuals to be prosecuted for war crime offences whether or not they were part of an auxiliary force', prohibit military judges from sitting on the tribunals, and permit the government to appeal to the Supreme Court against any acquittal.
In addition, the amended Act also has a new provision requiring the tribunal to be 'independent in the service of its judicial function', and to 'ensure a fair trial'.
It is however the absence of any further detail about what rights will be provided to defendants, and how fairness will be ensured that has concerned the diplomats.
"The government had an opportunity to update the legislation, but failed to do so." one senior diplomat told The Daily Star. ’Much more could have been done. There is significant concern amongst the international community about what kinds of trial will take place,” he added.
Another diplomat said rules of evidence in the 1973 Act are so lax at present that it might well be possible under the current law to convict people simply on the basis of press clippings and materials available on the internet'. The amended law still fails to state the level of evidential proof required for a conviction.
The Daily Star also confirmed that the United Nations has concerns, and urged the government to bring some further amendments to the 1973 Act, to ensure that it conforms to minimum international standards.
These diplomats' concerns help explain why no foreign government has yet agreed to give the Bangladesh government any substantive help or assistance for holding the trials.
The UN Headquarter also told The Daily Star that the UN will not give assistance for the trials, but agreed 'to give assistance to help the government make an informed decision on the issue'. The UN said it is currently in discussion with the Bangladesh authorities on the subject. It has not yet sent any expert to assist the Bangladesh government.
In voicing their concerns privately, the diplomats reflected the views expressed by the international human rights organisation Human Rights Watch, in a letter to Prime Minister Sheikh Hasina. The letter stated that the amendments will not 'bring Bangladeshi law into line with international trial standards nor ensure due process', and that 'significant improvements' to the 1973 Act are required.
Human Rights Watch said while the 1973 Act may have been largely based on international standards at the time of its drafting, international criminal law has evolved significantly since'. The letter advised the prime minister that if the Bangladesh government wanted to reflect international norms, it should amend the law in line with the due process requirements set out in the Rome Statute of the International Criminal Court, to which the Bangladesh government is in fact a signatory.
This will require the government, for example, to ensure that the offences in the Act match the internationally recognised definitions of war crimes and crimes against humanity, setting up a defence office, specifying the grounds for an individual to claim criminal responsibility, and provide improved rights to the accused, in particular the right of access to a lawyer once he or she is considered a suspect.
Shahriar Kabir, president of Ekattorer Ghatok Dalal Nirmul Committee, also known as Forum for Secular Bangladesh, told The Daily Star that he also supports minimum international standards and transparency'1. He said, "If Human Rights Watch or other international experts consider the existing law to be inadequate, the government should certainly look into what changes to the Act are necessary." He, however, was of the view that the current legislation is ‘adequate1.
Shafiq Ahmed, the law minister, told The Daily Star that it was difficult for him to comment, as the diplomats had not set out their specific concerns to him. "If they have specific proposals for amendments, they should tell me," he said. The government agreed to at least one of the UN suggestions that army judges should not be able to sit on the tribunal, he added.