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Administration of International Criminal Justice in Domestic Jurisdiction: the Bangladesh Perspective

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Administration of International Criminal Justice in Domestic Jurisdiction: the Bangladesh Perspective ADMINISTRATION OF INTERNATIONAL CRIMINAL JUSTICE IN DOMESTIC JURISDICTION: THE BANGLADESH PERSPECTIVE Md Sirajul Haque Supervisors Associate Professor Dr Daud Hassan Director, International Centre for Ocean Government Dr AKM Masudul Haque A thesis submitted in fulfilment of the requirement for the award of the degree of Doctor of Philosophy School of Law Western Sydney University Sydney, NSW, Australia June 2020 Declaration I hereby declare that this thesis under the title ‘ADMINISTRATION OF INTERNATIONAL CRIMINAL JUSTICE IN DOMESTIC JURISDICTION: THE BANGLADESH PERSPECTIVE’ is my original work unless and otherwise referenced or acknowledged. This thesis has not been submitted for qualification at any other academic institution. Md Sirajul Haque 30 June 2020 ii Acknowledgements As a lawyer in Australia and Bangladesh, writing this thesis was the most arduous task I have ever undertaken, and it would not have been possible without enormous support from many. I would like to express special gratitude to Western Sydney University (WSU), Australia, for providing me the opportunity to become a postgraduate research student at the Law School to conduct this research. I express my sincere thanks and gratitude to my principal supervisor, Associate Professor Dr Daud Hassan, an innovative and accomplished world-renowned legal scholar, for his support, comments, guidance and inspiration throughout my research. I am also indebted to my co-supervisor, Dr Masudul Haque, for his patience, comments and intensive guidance. The valuable comments and feedback of my supervisors helped me reach the stage of submission. I sincerely thank Professor Dr Rafiqul Islam of Macquarie University, Australia, Honourable Justice ABM Khairul Haque, former Chief Justice of Bangladesh, and currently Chairman, Law Commission of Bangladesh, Professor Dr AAMS Arefin Siddique, former Vice-Chancellor of Dhaka University and Justice Md Shahinur Islam, Chairman of the International Crimes Tribunal Bangladesh, for their valuable advice on different legal and conceptual issues during my PhD candidature. I also received help and cooperation from many other individuals and institutions. I would like to mention a few here. Particularly, I express my gratitude and deep appreciation to Associate Professor of Independent University of Bangladesh, Mostafa Hosain, Assistant Professor, BRAC University, Bangladesh, Ashraful Alam, a PhD candidate at WSU, Md Abu Sayeed, a PhD candidate at UNSW, Dr Jakerul Abedin, Joint Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh, Dr Nahid Hossain, Joint Secretary, Ministry of Finance, Bangladesh and a former Fellow at WSU Law School, Professor Nizamul Haque Bhuiyan, Professor Amanullah Ferdous of Dhaka University, Advocate Md Akhtaruzzaman, Nazmul Huda PhD candidate at UNSW, Dr Biplop Saha, Dr Awal Khan, PhD graduates from WSU Law School, and barrister Tapos Kanti Baul, a member of the prosecution team of ICT-BD. I am also grateful to the Honourable Judges of the International Crimes Tribunals (ICT-BD) and the HCD of the iii Supreme Court of Bangladesh, particularly, Justice Dr Quazi Rezaul Hoque, Justice MR Hasan and from His Excellency Imtiaz Hossain, former High Commissioner of Bangladesh in Australia, who provided me valuable intellectual support and cooperation. Also, to mention that my thesis was edited by the Elite Editing and editorial intervention was restricted to Standard D and E of the Australian Standard for Editing Practice I would also like to express a special thanks to many of my colleagues and well-wishers, from whom I have received continuous encouragement, particularly Gama Kadir, PS Chunnu, Gausul Alam Shahajada, Dr Shamim Alam, Molla Md Rashidul Huq, Dr Mahbubul Alam, Mehedi Hasan Kochi, Manik Nag, Faisal Azad, MM Mizanur Rahman, Dr Prodip Rayhan and Dr Ratan Kundu. Finally, my mother, as usual, remained a continuous source of inspiration. No words can suffice to express gratitude to her who continues to pray for me. I am enormously indebted to my wife, Mahafuza Haque, and my son, Md Mohibul Haque, and daughter, Shara Haque, for their patience, cooperation and understanding, which enabled me to complete my thesis. iv Dedication Dedicated to the Father of the Nation of Bangladesh, Bangabandhu Sheikh Mujibur Rahman, whose enduring struggle for building a peaceful postwar Bangladesh is manifested in his resolve to try war criminals and enact the International Crimes (Tribunals) Act of 1973, the pole star of ending the culture of impunity. v Abstract This thesis analyses various legal issues surrounding the ongoing domestic trial of certain international crimes committed during the Bangladesh Liberation War in 1971. The trial has been taking place under the International Crimes (Tribunals) Act 1973 (ICT-BD Act) before the International Crimes Tribunals since 2010. These tribunals, established by the Bangladeshi government pursuant to The ICT-BD Act, are special in nature, and exclusively domestic in composition and functional orientation. Thus far, the tribunals have handed down nearly 50 judgments with convictions and punishments. This trial has both supporters and doubters, nationally and internationally. This thesis seeks to address and dispel some of the controversies arising from the legal issues relevant to the trial and tribunals. The thesis undertakes a systematic investigation of Bangladesh’s initiatives in establishing and conducting this trial, against national and international odds, and the significance and contributions of this trial in the context of international criminal law. The thesis analyses the judicial deliberations, interpretations and applications of various provisions of The ICT-BD Act by the tribunals. These include the definitions and constituent legal elements of the specific international crimes embodied in The ICT-BD Act; criminal responsibilities of the perpetrators of these designated crimes; jurisdiction of the tribunals; rules of procedures followed in the conduct of the trial; trials in absentia; trial, appeal and review proceedings with convictions and sentencing; and prosecutorial strategies in charge framing and discharging burden of proof and defence rebuttals. The analysis of these substantive legal issues is brought with the interpretation developed by the tribunals and the Appellate Division of the Supreme Court of Bangladesh. Following this analysis, the thesis observes that the Bangladesh trial, despite its initial difficulties, has gathered pace and momentum in delivering justice to victims and ending the impunity of perpetrators of the crimes committed in 1971. The thesis also analyses the relationship of The ICT-BD Act with international criminal law; the former has clearly incorporated the latter for mandatory enforcement in domestic jurisdiction. The Act has drawn heavily from the Nuremberg Charter, precedents and principles of international vi criminal law adopted by the United Nations (UN) in 1950. The thesis argues that the Bangladesh tribunals have been administering criminal justice according to international criminal law and policy, as adopted in The ICT-BD Act, the substantive law of the trial. There is nothing in international criminal law and policy that prevents national trials of international crimes. Instead, The Rome Statute of the ICC repeatedly imposes a positive duty upon International Criminal Court (ICC) member states to establish such national trials to complement the international criminal justice system. The thesis appraises the Bangladesh trial in the context of The Rome Statute of the ICC, which has been ratified by Bangladesh (the only ratifying state in Asia). To this end, the domestic trial of international crimes in Bangladesh has been viewed as complementary to the international criminal justice under the ICC Statute. Given the ineffectiveness, non-universal jurisdiction and demonstrated limitations of the international criminal justice system, particularly the ICC and hybrid tribunals with UN involvement (East Timor and Cambodia), the role and success of national criminal jurisdiction in ending impunity for international crimes is praiseworthy. Since the very purpose of both national and international criminal justice is the same—ending the impunity of the perpetrators of international crimes—both systems must cooperate and complement each other to achieve their common goal. Finally, the thesis establishes that the effectiveness and success of the Bangladesh trial should not be assessed only by highlighting its limitations but also by its achievements in undertaking the challenge of the trials, which even the international community and the UN could not try for many decades. Without this trial, the cycle of impunity would have prevailed over the pursuit of justice. The legacy, significance and precedential effects of the Bangladesh experience are likely to influence future judicial decision-making should a parallel situation emerge in the same way. Bangladesh judges have relied on the precedents and principles of the Nuremberg trials and subsequent ad hoc international crimes tribunals, despite their inadequacies and limitations. vii List of Abbreviations AD: Appellate Division of the Supreme Court of Bangladesh BD: Bangladesh CD: compact disc CIL: customary international law CJ: Chief Justice DRC: Democratic Republic of the Congo DVD: digital versatile disc ECCC: Extraordinary Chambers in the Courts of Cambodia ECHR: European Court of Human Rights EU: European Union HCD: High Court Division of the Supreme Court of
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