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What Lessons May Be Learnt from the Operation of the Ict-Bd in the Areas of International Criminal Law and Transitional Justice?

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What Lessons May Be Learnt from the Operation of the Ict-Bd in the Areas of International Criminal Law and Transitional Justice? WHAT LESSONS MAY BE LEARNT FROM THE OPERATION OF THE ICT-BD IN THE AREAS OF INTERNATIONAL CRIMINAL LAW AND TRANSITIONAL JUSTICE? SAJIB HOSEN A thesis in partial fulfilment of the requirements of Anglia Ruskin University for the degree of Doctor of Philosophy (Law) School of Law Faculty of Business and Law Anglia Ruskin University Supervised by: Dr. Aldo Zammit Borda Faculty of Business and Law, Anglia Ruskin University, Cambridge, UK Submitted on 30 August 2019 TABLE OF CONTENTS APPENDIX GUIDANCE x ABSTRACT xi ACKNOWLEDGEMENTS xii LIST OF ABBREVIATIONS xiv CHAPTER 1 - GENERAL INTRODUCTION 1.1 Introduction 1 (1.1.1) The International Crimes (Tribunals) Act 1973 3 (1.1.2) The International Crime Tribunal(s) of Bangladesh (The ICT-BD) 4 1.2 Aims, Objectives and Statement of problem 5 1.3 Significance of this research and reason for selection 8 1.4 Contribution to knowledge 1 0 1.5 Methodology 12 Table 1: Code names of the participants 19 Table 2: Codes of the questions answered by the participants 20 Table 3: Understanding the references to interview data 20 (1.5.1) Ethical approval and Risk Management 21 (1.5.2) Scope of the thesis 22 1.6 Structure of Thesis 23 CHAPTER 2 – THE CONTEXT IN DETAIL 2.1 Introduction 25 (2.1.1) Legal system in Bangladesh 27 (2.1.2) Liberation War of 1971 28 (2.1.3) Atrocities committed during the Liberation War of 1971 32 i (2.1.4) Local Collaborators, auxiliary forces 35 (2.1.5) Failed attempt of reconciliation and prosecution 38 2.2 Conclusion 44 CHAPTER 3 – LITREATURE REVIEW AND THEORETICAL FRAMEWORK 3.1 Introduction to literature review on various transitional justice mechanisms 45 (3.1.1) What is transitional Justice? 46 (3.1.2) Developing phases of Transitional justice 47 (3.1.3) Goals and objectives of Transitional Justice 50 (3.1.4) Justice and legitimacy of Transitional Justice Processes 52 (3.1.4.1) Debates on Top-down v Bottom-up approaches 54 (3.1.4.2) Debates on Universalism vs Cultural relativism 55 3.2 Various forms of transitional Justice, their Strengths and weaknesses 57 (3.2.1) Criminal Prosecution 57 (3.2.2) Historic Tribunals: Nuremberg & Tokyo 60 (3.2.3) Ad hoc International Tribunals 60 (3.2.4) International Criminal Court 61 (3.2.5) Hybrid Tribunals 61 (3.2.6) Domestic Tribunals 63 3.3 Alternatives and complements to criminal prosecution 65 (3.3.1) Truth and Reconciliation commissions 65 (3.3.2) Reparations 69 (3.3.3) Amnesty 70 (3.3.4) Lustration 73 (3.3.5) Local justice mechanisms 74 3.4 Nature of transitional justice around the world 75 3.5 Conclusion: Choosing Transitional Justice Mechanisms 77 ii CHAPTER 4 – FEATURES OF THE ICT-BD 4.1 Introduction 81 4.2 Parliamentary Debates relating to the ICT Act 1973 82 (4.2.1) Constitution (First Amendment) Bill 1973 82 (4.2.2) International Crimes (Tribunal) Bill 1973 84 4.3 Analysis of the Substantive Laws of the ICT-BD 85 (4.3.1) Jurisdiction of the ICT-BD 86 (4.3.2) Crimes against humanity 86 (4.3.3) Crimes against humanity under the ICT Act 1973 88 (4.3.4) Crimes against peace 90 (4.3.5) Genocide 91 (4.3.6) Notion of genocide reflected in the ICT-BD judgments 94 (4.3.7) Interim findings 97 (4.3.8) War Crimes 98 (4.3.9) Attempt, Abetment or Conspiracy: Section 3(2)(g) 99 (4.3.10) Complicity in or failure to prevent crimes: Section 3(2)(h) 101 (4.3.11) Accessors, abettors and auxiliary forces 101 (4.3.12) Modes of liability: Joint enterprise & Superior responsibility 102 4.4 Analysis of the Procedural Rules of the ICT-BD 103 (4.4.1) Applicable laws 103 (4.4.2) Investigation agency and prosecution team 104 (4.4.3) Warrant of arrest and right to bail 105 (4.4.4) Forming charges against the accused 105 (4.4.5) Trial 106 (4.4.6) Right to Interpreter and Counsel 106 (4.4.7) Trial in Absentia 106 (4.4.8) Rules of Evidence 107 iii (4.4.9) Judgment and Sentencing 107 (4.4.10) Right of appeal 109 (4.4.11) Protection of witnesses and victims 110 (4.4.12) Fair trial attributes 110 4.5 Composition of the ICT-BD 111 (4.5.1) Structure of the Tribunal 111 (4.5.2) Appointment process of judges 112 (4.5.3) Office of the Tribunal 114 (4.5.4) Budget of the ICT-BD 114 4.6 Conclusion 116 CHAPTER 5 – CULTURE OF IMPUNITY, DELAYED JUSTICE AND REPARATION 5.1 Introduction 118 (5.1.1) Definition of impunity 118 (5.1.2) Culture of Impunity 120 5.2 International position of the culture of Impunity 121 5.3 The position of culture of impunity in Bangladesh 124 5.4 Analysis of interview data: Culture of Impunity 125 (5.4.1) Reasons for establishing the ICT-BD 131 (5.4.2) Problems due to the culture of Impunity 132 (5.4.3) Role of ICT-BD ending the culture of Impunity 134 (5.4.4) Systematic criticisms of the ICT-BD 136 5.5 An analysis of interview data: ICT-BD and Delayed Justice 137 (5.5.1) Effects of delayed prosecution 14 3 (5.5.2) Suffering of victim and witnesses 147 5.6 Reparation as a supplement to criminal prosecution 149 5.7 International Legal position on Reparation 150 5.8 Legal position of ICT-BD on Reparation 152 iv 5.9 An analysis of interview data: Reparation 153 (5.9.1) Reason for not providing reparation to the victims of ICT-BD 155 (5.9.2) Lack of legal provision to deal with reparation 156 158 (5.9.3) Economic and Political consideration 160 5.10 Conclusion and interim findings CHAPTER 6 – DUE PROCESS 6.1 Introduction 164 (6.1.1) Meaning of due process 165 (6.1.2) Substantive and Procedural due process 166 (6.1.3) Development of due process concept 167 6.2. International application of Due Process 168 6.3 Legal position of Due Process in the ICT – BD 169 6.4 Analysis of the Interview Data 170 (6.4.1) Standard: Due process in practice 170 (6.4.2) Standard: Substantive Due process and International Crimes 172 (Tribunal) Act 1973 (6.4.3) Standard: Procedural due process and the ICT-BD 175 (6.4.4) Procedure: Due process of ICT-BD at the investigation stage 178 (6.4.5) Procedure: Due process and evidential flexibility 181 (6.4.6) Procedure: Right of Appeal 183 (6.4.7) Procedure: Rights of the defence lawyer 185 (6.4.8) Comments: Experience of judges and lawyers 187 (6.4.9) Criticisms: Victors’ Justice 191 (6.4.10) Criticisms: Constitutional issue and Due process 192 (6.4.11) Criticisms: Openness and Fairness 195 (6.4.12) Criticisms: Due process and political interference 196 (6.4.13) Criticisms: Role of media and perception of due process 199 v 6.5 Conclusion and Interim findings 201 CHAPTER 7- EVIDENTIAL MATTERS OF THE ICT-BD 7.1 Introduction 209 (7.1.1) Types of Evidence 209 (7.1.2) Objectives of the Rules of Evidence 210 7.2 International legal position on Rules of Evidence 211 7.3 Legal position of the evidential rules of the ICT-BD 213 (7.3.1) Method of evaluating evidence: Standard of proof 214 (7.3.2) Admissibility of Evidence 215 (7.3.3) Probative value and weight of evidence 215 (7.3.4) Corroborating Evidence 216 7.4 Analysis of the interview data 216 (7.4.1) Availability of evidence before ICT-BD 217 (7.4.2) Statements of the witnesses 217 (7.4.3) Cultural factors assessing witnesses 219 (7.4.4) Quality of Evidence 220 (7.4.5) Hearsay Evidence 221 (7.4.6) Effect of time and old Evidence 227 7.5 Conclusion and interim findings 229 vi CHAPTER 8 – WITNESS PROTECTION 8.1 Introduction 232 (8.1.1) Definition of Witness and its scope 233 (8.1.2) Intimidation of Witnesses 234 (8.1.3) Witness Tampering 235 (8.1.4) Various stages of Witness Protection 237 (8.1.5) Anonymity as a Witness Protection 238 (8.1.6) Delayed Disclosure 238 (8.1.7) Balancing the rights of an accused and witness protection 239 8.2 International Witness Protection measures 240 8.3 The Law relating to victim and witness protection in Bangladesh 241 (8.3.1) Law Commission Reports 243 8.4 Analysis of interview data: Observation of the Appellate Division Judge 246 (8.4.1) Intimidation of witnesses in Bangladesh 248 (8.4.2) National and District Committees 253 (8.4.3) Interim orders and Witnesses’ Protection 253 (8.4.4) Hostile Witness 255 8.5 Conclusion and Interim findings 259 vii CHAPTER 9 – SENTENCING AND CAPITAL PUNISHMENT 9.1 Introduction 264 (9.1.1) Theories of punishment 265 (9.1.2) Scope of criminal punishment 266 (9.1.3) State sovereignty 268 9.2 International norms and practices in relation to sentencing principles 269 (9.2.1) Death penalty in International Criminal Law 272 (9.2.2) Death penalty as retribution & deterrence 274 (9.2.3) Death penalty: The abolitionist and retentionist debate 275 9.3 Legal framework of the ICT-BD relating to sentencing practices 276 (9.3.1) Outcry related to ICT-BD’s death penalty 276 9.4 Interview Data Analysis 277 (9.4.1) Sentencing aspect of the ICT-BD 278 (9.4.2) Approaches of the ICT-BD in determining sentence 280 9.5 Judgment Analysis 282 (9.5.1) Death penalty principles in the case of Abul Kalam Azad 282 (9.5.2) Death penalty principles in the case of Abdul Quader Molla 283 (9.5.3) Death penalty issues from the case of Sayeedi 287 (9.5.4) Dissenting regarding capital punishment in the case of Sayeedi 288 9.6 Conclusion and interim findings 289 viii CHAPTER 10 – KEY FINDINGS AND LESSONS FOR ICL AND TJ 10.1 Introduction 294 (10.1.1) Transitional Justice in the context of Bangladesh 295 10.2 Lessons Learned: The way forward for the ICT-BD 296 (10.2.1) Ending Impunity 30 0 (10.2.2) Delayed Justice 302 (10.2.3) Reparation 303 (10.2.4) Due Process 304 (10.2.5) Evidential Rules and Old Evidence 306 (10.2.6) Witness Protection 308 (10.2.7) Sentencing Practices 309 10.3 Concluding Remarks 310 BIBILOGRAPHY 311 APPENDIX I ix APPENDIX GUIDANCE Appendix A I The International Crimes (Tribunals) Act, 1973 Appendix B XII Amended Rules of Procedure (ICT 1) Appendix C XXVII Participant Consent Form Appendix D XXIVIII Participant Information Sheet Appendix E XXX Semi Structures Interview Questionnaire for participants x ABSTRACT This thesis considers delayed prosecutions in the context of transitional justice and the Liberation War of Bangladesh in 1971.
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