I have nothing to say about me..... [Followed by the press conference of 12th July by the defense team in the auditorium of the Supreme Court Bar Association] Absolute power corrupts absolutely, it's well known to us, the govt. of Bangladesh is going to pave the way using the war crime trial as a weapon of harassing the opposition. Why this Drama in the name of war crime trials? 1.1 You all know that in 1973, Bangladesh Parliament enacted the International Crimes (Tribunals) Act to primarily try the 195 Pakistani Prisoners of War. In 1974, they were repatriated to Pakistan without trial. After 37 years, in March 2010, Bangladesh Government established the International Crimes Tribunal to try its own citizens. In July 2010, the Tribunal promulgated the Rules of Procedure, which has been amended last in June 2011. 1.2 In the 16 months of the establishment of the Tribunal, the Government has come under pressure from the international community, a section of the Bangladesh civil society, including the Supreme Court Bar Association, and a number of opposition political parties to (i) amend the Constitution, (ii) the 1973 Act and (iii) the Rules to bring the law to international standard. The international community included among others, the Human Rights Watch, Amnesty International, the International Centre for Transitional Justice (‘ICTJ’), the International Bar Association (‘IBA’) and most recently, the US Ambassador at Large on War Crimes Issues. On 14th July 2011, the US Government and the British Government have also made public statements asking to ensure free and fair trial by observing the principles of transparency and accountability. 1.3 On 26th September 2010, in addressing the 65th session of the United Nation General Assembly, the Hon’ble Prime Minister of Bangladesh assured the global community that Bangladesh has established an International Crimes Tribunal to try persons responsible for war crimes in accordance with rule of law as reflected in the Rome Statute. But over the last one year, the Government has failed to amend the Constitution and the 1973 Act to ensure fair trial. The latest amendments to the Rules have given further advantage to the Prosecution and very little to the Defence. It is too little, too late. If a trial takes place under the existing law, we are afraid that it will only legalise injustice. Amendment to Article 47 of the Constitution 2.1 The First Amendment to the Constitution prevents a person accused of committing war crimes to challenge any provision of the 1973 Act on the grounds of its inconsistency with any provision of the Constitution and the fundamental rights. Mr. Stephen Rapp, Human Rights Watch, Amnesty International and ICTJ have, in so many words, criticised the First Amendment and asked for its repeal. 2.2 In his letter of 21st March 2011 to the Bangladesh Foreign Minister, Mr. Rapp pointed out that: ‘a party to a proceeding before the ICT should be able to raise questions as to whether the provisions of the 1973 Act and the 2009 amendments violate international or domestic law as to retroactivity as well as other jurisdictional matters’. 2.3 In its letter of 15th March 2011 to the Law Minister, the International Centre for Transitional Justice also categorically stated that: ‘as a procedural guarantee, the defendant must have the right to challenge any aspect of the legal regime that will preside over the trial and seek judicial review based on the relevant standards of legality, as recognised under international law. 2.4 In its letter of 18th May 2011 to the Hon’ble Prime Minister, Human Rights Watch made a specific recommendation regarding constitutional amendment in the following terms: ‘Article 47A of the Constitution of Bangladesh be repealed to allow the accused protection of their constitutional rights, including the right to enforce their fundamental rights under Article 44 of the Constitution.’ 2.5 Most recently, in its letter of 21st June 2011, Amnesty International, in the following terms, stressed that the current constitutional provisions deny guarantees of the right to fair trial, which is recognised in international law: ‘Article 47A of the Constitution expressly denies persons before the Tribunal their constitutional rights to protection of law, against retroactive criminal legislation ..., and their right to speedy and public trial by an independent and impartial tribunal established by law and certain other fundamental rights.’ 2.6 But the Government has turned a deaf ear. Not only the First Amendment Act has not been repealed but a further amendment has been made on 30th June 2011, by which even an individual, not being a member of the auxillary forces cannot challenge the constitutionality of the 1973 Act. The sole purpose of the latest amendment is to prevent the 7 persons (5 top leaders of Bangladesh Jamaat-e- Islami and two former Ministers of the BNP) detained in connection with crimes against humanity from challenging the law under which they are being tried. Amnesty International in its letter to the Chairman of the Tribunal of 21st June 2011 pointed out that an impression has been created that ‘the Tribunal is dealing only with suspected perpetrators who are members of the current opposition parties.’ 3. ICC Elements of Crimes 3.1 In his press statement of 3rd July, the Registrar has accepted that section 3(2) of the Act of 1973 does not define but merely provides a list of the crimes triable by the Tribunal. In the absence of a clear definition of crimes, it is impossible for the accused persons to prepare their defence. 3.2 In its letter to the Law Minister dated 15th March 2011, the ICTJ observed that the 1973 Act does not precisely and accurately define the crimes which constitute the subject matter jurisdiction of the Tribunal. The ICTJ further observed that ‘in order for an accused person to understand the nature of charges against him and to have an adequate opportunity to defend himself against these allegations, the Tribunal’s jurisdiction must be sufficiently and clearly defined, including the elements of crime, forms of individual criminal liability and admissible defenses...’ In this regard, Ambassador Rapp in his letter to the Foreign Minister recommended consideration of adoption of a rule which would provide that in determining liability for crimes that are included in the Statute of the ICC, the judges of the Tribunal should be guided by the ICC Elements of Crimes. Ambassador Rapp also stressed that the Tribunal should seek guidance from the ICC Elements of Crime to the extent that the ICC Elements of Crimes do no expand criminal responsibility. Furthermore, Human Rights Watch in its letter dated 8th July 2009 recommended that ‘the definition of genocide, crimes against humanity and war crimes, and the definition of liability for crimes, be amended to be the same as those under the Rome statute of the International Criminal Court so that the court's verdicts will be internationally recognized’. 4. Domestic or International Tribunal 4.1 Although the Tribunal has been established by an Act of Parliament, it is a settled principle of law by the Appellate Division of the Supreme Court that ‘the national courts should not ... ignore the international obligations which a country undertakes’ and that if ‘the domestic laws are not clear enough or there is nothing therein, the national Courts should draw upon the principles incorporated in international instruments’ (2001 BLD (AD) 69). 4.2 Thus, the Tribunal is under an obligation to ‘draw upon the principles’ incorporated in International Covenant on Civil and Political Rights (‘ICCPR’) and the Rome Statute, which have been ratified by Bangladesh. As stated earlier, this obligation was accepted by the Hon’ble Prime Minister in her address to the UN General Assembly on 26th September 2010 in the following terms: ‘Bangladesh has established International Crimes Tribunal to try persons responsible for war crimes and crimes against humanity .... in 1971 .... . This action is in accord with the rule of law as reflected in the Rome Statute of the International Criminal Court (ICC), which we have ratified ... .’ 4.3 Furthermore, Ambassador Rapp in his letter of March 2011 to the Foreign Minister noted that Bangladesh, being a State Party to the Rome Statute has in fact ‘accepted application of the provisions of the Rome Statute, the ICC Elements of Crime, the ICC Rules of Procedure and Evidence in future cases before the ICC involving Bangladesh citizens’. Ambassador Rapp went on to suggest that ‘the Government of Bangladesh incorporate the provisions of the ICCPR relating to fair judicial process and the statutes, elements of crime and rules of procedure of the ICC and international tribunals among the rules and practices applicable to proceedings before the ICT’. In its letter dated 18th May 2011 to the Hon’ble Prime Minister, Human Rights Watch also stressed that it is essential that all aspects of the Tribunal’s work meet Bangladesh’s obligations as a state party to the ICCPR to which Bangladesh is a State party. 4.4 In this backdrop, the Tribunal’s Registrar cannot simply say that there is no scope of creating doubts as to the legality and acceptability of the Tribunal on the plea of so called ‘international standards’. This is completely unacceptable. We reject the Registrar’s statement as irresponsible. If you don’t want to follow international standards, then say so expressly. If you say that it is a domestic tribunal, then follow the domestic laws: allow the accused persons the protection of fundamental rights guaranteed in the Constitution, the procedural safeguards contained in the Criminal Procedure Code and the substantive law of evidence codified in the Evidence Act. Do not blow hot and cold together. Act in a civilised manner. 5. Bail Provisions 5.1 The new Rule 9(5) of the Rules provides that the Investigation Agency shall conclude the investigation within one year of the arrest of the accused person under the Rules. After a lapse of one year, the Tribunal may, in ‘exceptional circumstances’, extend the order of detention of the accused person for a further period of 6 months. The words ‘exceptional circumstances’ have not been defined in the Rules and as such the Tribunal has been given unfettered discretion to refuse bail and extend the order of detention of the accused persons. We want to emphatically say that Rule 9 has been amended solely with a view to justifying the Tribunal’s repeated refusal to grant bail to the accused persons despite the fact that they have been detained without charge for almost 1 year. Furthermore, when on 26th August 2010, the defence counsel questioned the legality of issuing warrants of arrest against the leaders of Bangladesh Jamaat-e-Islami by filing an application before the High Court Division on the ground that they did not fall within the definition of ‘accused’ as provided in the Rules, the Tribunal, on 25th October 2010 amended the definition of ‘accused’ to include ‘persons against whom an investigation of an offence under the Act has been started’, thereby bringing the Jamaat leaders within the scope of the Rules. 5.2 It is pointed out here that under the Rule 40bis of the Rules of Procedure of the International Crimes Tribunal for Former Yugoslavia (ICTY) and the International Crimes Tribunal for Rwanda (ICTR), the maximum period of pretrial detention is 90 days. 5.3 Ambassador Rapp recommended that safeguards similar to those in Rule 40bis of ICTR and ICTY and Rule 63 of the ECCC Internal Rules be introduced in the Rules. Unfortunately, this has not been done. In fact, the amended Rules of the Tribunal allow the Tribunal to extend the order of detention of the accused persons up to one and half years. The Rules fail to specify that at the end of such period of detention, the accused persons will be entitled to bail. We fear that the Tribunal may invoke the broad sweeping powers that it has conferred upon itself under the new Rule 46A to deny bail, even after detention for more than one and half years. 6. Interrogation and admissibility of evidence 6.1 The new Rule 56(3) allows accused’s statements made to the Investigating Officer admissible as evidence if they lead to discovery of incriminating materials. The Tribunal has repeatedly asserted that the statements made by the accused persons to the Investigation Agency will not be admissible as evidence. In fact, on 24th May 2011, the Tribunal rejected Moulana Motiur Rahman Nizami’s application not to admit the statements made during interrogation. Such order of the Tribunal has been undermined by the new Rule 56(3), as statements extracted from the accused persons during interrogation will now be admissible as evidence, if the Prosecution claims that such statements have led to the discovery of incriminating materials. 6.2 The amendment to the Rules also fails to take into account the Rapp recommendations to incorporate procedural safeguards to regulate the interrogation of accused persons in the manner provided in Rules 42, 43, 63, 90(e) and 95 of the ICTR Rules. These ICTR Rules requires that the interrogation of the accused persons be video-taped or audio-taped, so as to ensure that evidence, tainted by coercion, duress and undue influence are not admissible and guarantees, inter alia, the right of an accused person to have a counsel of his choice present during interrogation. Unfortunately, such provisions have not been incorporated in the Rules. 6.3 The new Rule 24(1A) provides that at the time of recording confessions, the Judicial Magistrate shall allow the accused’s counsel to be present, although the counsel is not allowed to ‘speak in the course of recording such confession’. By providing that the counsel shall not be allowed to speak during the recording of confessions, the new amendment has in fact rendered nugatory of the provision of having a counsel present. We fail to understand what purpose would be served by having a counsel present during the recording of confession, if the accused person is denied the opportunity of availing the expertise of his counsel. The new Rules, by preventing counsels from speaking during interrogation, has in fact prevented counsels from making protests, even against duress and undue influence exerted in extracting confessions from the accused persons. 6.4 The amendment to Rule 54 has relaxed the rules of evidence which will benefit the Prosecution. The new Rule 54(2) provides that the Tribunal may admit any document or its photocopies as evidence if such documents initially appear to have probative value. ‘Probative value’ has not been defined in the Rules. No objective test has been laid down for determining what is ‘probative value’. 7. Essential Elements of a Fair Trial 7.1 Interlocutory Appeal 7.1.1 The 1973 Act should have been amended by setting up an appellate forum to hear appeals against the interlocutory orders of the Tribunal. Such rights of appeal are available in most international tribunals. Ambassador Rapp in his letter to the Foreign Minister emphasised, with reference to Rules 73(A) and (B) of the ICTR Rules, the importance of providing an opportunity for interlocutory appeals. According to him, the appellate forum is necessary to avoid the situation that would occur when the appellate court decides on final appeal that a significant legal error was made at the trial and the only fair remedy is a re-trial. 7.1.2 In response to a request by the UK Parliament Human Rights Group, the War Crimes Committee of the International Bar Association (IBA) conducted a legislative review of the 1973 Act and recommended, inter alia, the establishment of an appellate court outside the regular judicial structure. In IBA’s opinion, creation of such an appellate body ‘increases the legitimacy of the process as it ensures that the appellate court is outside of the influence of the regular judicial structure.’ Further, Human Rights Watch, in its letter dated 18th May 2011 recommended that ‘a dedicated appeals chamber should be established to hear interlocutory appeals from both defense and prosecution.’ 7.1.3 In the absence of a forum of appeal against orders passed by the Tribunal, the accused persons have been denied the opportunity of challenging manifestly perverse interlocutory orders passed by the Tribunal. This will seriously prejudice the right of the accused persons to a fair trial. 7.2 Review 7.2.1 The new Rule 26(3) provides for review of the order by the Tribunal. The provision for review is no substitute for a provision of appeal. It is settled principle that review is allowed only on limited grounds of error being apparent on the face of the record. Furthermore, the powers of review can be exercised by the same Tribunal which initially passed the order. As such, the accused persons will be deprived of a fair and effective opportunity of challenging the orders passed by the Tribunal. A review is an appeal from Caesar to Caesar. 7.2.2 The new Rule 26(3) also allows the Tribunal to alter the order of framing of charge, which is particularly pernicious as it allows the Tribunal to amend the charge to suit the convenience of the Prosecution after being appraised of the Defence case. Once charge has been framed against the accused persons, the trial has commenced. The Tribunal should not be allowed to amend the order of framing of charge to allow the Prosecution an opportunity to cure any defect and/or ‘fill up any gap’ in the Prosecution case. This is dangerous, to say the least. 7.3 Disclosure and Preparation of Defence case 7.3.1 Under the new Rule 38(2), the accused has been given a mere three weeks time to prepare his defence. Three weeks time is absolutely inadequate for the purpose of responding to charges of genocide and crimes against humanity. Furthermore, the Investigation Agency having been established in March 2010 has been conducting investigation for almost one and half years now into crimes committed 40 years ago. The amended Rules also empower the Tribunal to allow the Investigation Agency to continue the investigation for a period of one year after the arrest of the accused person, which period may be extended by a further period of 6 months by the Tribunal upon examination of the Progress Report submitted by the Investigation Agency. (Rules 9(5) and (6)). Thus the Rules provide ample opportunity to the Prosecution to prepare its case, while the Defence has been granted only a minimum of three weeks to prepare their case. 7.3.2 The amendments to the Rules have completely ignored Ambassador Rapp’s recommendation of considering adoption of a rule that would regulate disclosure of relevant documents and materials in a manner similar to that provided in Rules 77, 78, 79, 80 and 84 of the ICC Rules. In its letter to the Prime Minister, Human Rights Watch also emphasised that adequate time and facilities should be made available for the preparation of the defence case. Human Rights Watch pointed out the three weeks allowed by the 1973 Act ‘fall far short of normative practices in various international tribunals, where the defense typically receives several months to prepare after detailed receipt of the Prosecution’s witness statements and other evidence.’ The ICTJ in its letter dated 15th March 2011 to the Hon’ble Law Minister also pointed out that deficiencies in the current law include the failure to clearly establish the Prosecutors’ duty to provide full and timely disclosure to the defense of all material known to the prosecution that is relevant to the proceedings, the accused’s right to receive detailed and timely notice of charges, and the right to effective counsel. 7.3.3 Adoption of rules similar to the ICC Rules on disclosure would have ensured that the defence receives the names of witnesses whom the Prosecutor intends to call and copies of any prior statements made by those witnesses ‘sufficiently in advance to enable the adequate preparation of the defence’. However, no such provision has been made in the new Rules. The new Rules completely fails to protect the right of accused persons guaranteed under Article 14(3)(b) ICCPR to adequate time and facilities essential for the preparation of a defence. 7.4 Presumption of Innocence 7.4.1 The new Rule 43(2) provides that a person charged with crimes under section 3(2) of the Act shall be presumed innocent until he is found guilty. While this is a welcome amendment, the presumption of innocence has in fact been undermined by the deletion of Rule 29(2) of the Rules by Rule 9 of the Amendment. Rule 29(1) provides that the Tribunal shall take cognizance of an offence against an accused upon examination of the formal charge, the Investigation Report, the paper, documents and the evidence submitted by a Prosecutor in support thereof, if they disclose a prima facie case for trial of the accused. Before the amendment, Rule 29(2) provided that if there is no such disclosure as mentioned in sub-rule (1), the Tribunal shall dismiss the case. The deletion of Rule 29(2) has paved open the way for the Tribunal to refuse to dismiss a case, even where no prima facie case for trial is disclosed against the accused person. This is contrary to the ICC Rules of Procedure. 7.5 Rights of audience of foreign counsel 7.5.1 Rule 42 read with the new Rule 43(4) restricts the possibility of theaccused persons engaging foreign counsels to appear before the Tribunal. The accused persons have been implicated in the commission of international crimes. International Criminal law is a highly specialised area of criminal law and the imposition of restrictions on the rights of audience by requiring counsels to be ‘legally authorised’ before they can appear before the Tribunal has deprived the accused of the right to engage foreign counsels, who are experts in this field. 7.5.2 The Tribunal should have amended the Rules allowing both the Prosecution and the Defence to engage foreign counsels to appear before the Tribunal. Ambassador Rapp strongly recommended in favour of participation of foreign counsels in view of the fact that ‘the field of international crimes is highly specialised, and the participation of foreign counsel, particularly those who have litigated cases in the international and hybrid courts and tribunals, is very important to ensure that uniform or generally agreed standards are observed in practice.’ Furthermore, Human Rights Watch has also recommended in favour of amendments to the law to guarantee the accused persons the right to have legal assistance of their choosing. 7.6 Witness and Victim Protection 7.6.1 While we welcome the Witness and Victim Protection measures introduced in the Rule 58A of the Rules, we are concerned that the Government has been given the task of arranging the accommodation of witnesses and victims and of ensuring their security and surveillance. Our apprehension is that defence witnesses may be harassed or intimidated by the government agencies, which would prejudice the right of the accused persons to a fair trial. In the circumstances, the task of arranging accommodation and security and surveillance of witnesses could be better performed by a Non-Governmental Human Rights organisation sponsored by the Government. 8 Other Matters 8.1 The new Rule 43(A) allows trial of an accused person in his absence, which completely negates the principles of a fair trial. This provision allows the Tribunal to proceed with the trial of an accused person in his absence on a plea by the Prosecution that the accused person is ill. If an accused person is ill, the proceedings of the Tribunal should be adjourned, until he is fit to appear before the Tribunal. To try a person who is in the custody of the Tribunal in his absence is a derogation of the recognised principles of fair trial. 8.2 The new Rule 46(2) provides that the sentence of imprisonment shall commence from the date of judgment, which means that the period spent by the accused persons in detention shall not be taken into consideration at the time of sentencing. Section 35A of the Code of Criminal Procedure, which has been made inapplicable to the proceedings of the Tribunal, requires that the period spent by an accused person prior to completion of the trial be taken into consideration at the time of sentencing. While the Rules allow the Tribunal to detain the accused persons indefinitely before Tribunal, to refuse to take into account the period of pre-trial detention of the accused person at the time of sentencing is repugnant to the principles of a fair trial. 8.3 The new Rule 46A gives unfettered power and discretion to the Tribunal to pass any order it deems fit. Such powers may be abused by the Tribunal to impede fair reporting of the proceedings of the Tribunal and even restrict public access to the Tribunal. 8.4 The new Rule 53 is wholly inadequate as it does not provide for the proceedings of the Tribunal (apart from the testimony of witnesses) to be recorded, although the proceedings of all international tribunals are publicly available. The amended Rules should have contained provisions for recording the entire proceedings of the Tribunal. 9 Challenging the constitution of the Tribunal 9.1 The ICC Rules allow the defence to challenge the appointment of any member of the Tribunal on the ground of bias. Such a provision was included in the ICTY and ICTR Rules. This defence right is widely recognised by the courts and tribunals across Europe and the United States. In the much publicised case of General Augusto Pinochet, the House of Lords held that Lord Hoffman was disqualified from hearing a matter in view of his links with the Amnesty International and accordingly set aside a ruling of a panel of Law Lords allowing extradition of Pinochet. 9.2 Section 6(8) of the 1973 Act has expressly taken away the right of the Defence to challenge the constitution of the Tribunal. This is totally unacceptable. Moreover, by a Writ Petition, we challenged the competence of the two sitting High Court Judges to sit in the Tribunal, as being unconstitutional. A Division Bench of the High Court Division has wrongly rejected our Writ Petition summarily. An appeal is pending before the Appellate Division. 10. Finally we say that the current legal framework fails to meet the minimum standards required of a fair trial. In coming to this conclusion, the Defence Team is fortified by the opinion of legal luminaries across the world – they are the Hon’ble Michael J Beloff QC, a senior Queen’s Counsel of the English Bar, Mr. Soli J Sorabjee, a Senior Advocate and former Attorney General of India, Mr. Steven Kay QC, international criminal law expert and counsel for Slobodan Milosevic (former President of Yugoslavia), Professor William Schabas, Professor of Human Rights Law at National University of Ireland Galway, Mr. Gregor D. Guy-Smith, trainer and former President of the Association of Defence Counsel for the ICT, Yugoslavia and Ms Colleen M Rohan, prominent International Law practitioner and trainer for International Criminal Court. On behalf of the Defence Team, we call upon the Government of Bangladesh: (i) to repeal the First Amendment and the consequential provisions of the Fifteenth Amendment and allow the accused persons to exercise their fundamental rights guaranteed in the Constitution; (ii) to create a forum for appeals to hear interlocutory matters; (iii) to allow foreign counsels to appear both for the Prosecution and the Defence before the Tribunal; (iv) to record the entire proceedings; and (v) to allow access to international observers. 11. If all these demands are not met, the trial would be a show trial. It will not be acceptable to us. It will not be acceptable to the right thinking people of Bangladesh society. It will not be acceptable to the international community.