Recommendations made by Stephen J Rapp, US Ambassador at Large, War Crimes Issues&the extent of their implementations by the International Crimes Tribunal and the Government of Bangladesh

28 Nov

 
 

 
 

Recommendations made by Stephen J Rapp, US Ambassador at Large, War Crimes Issues

&

the extent of their implementations by the International Crimes Tribunal and the Government of Bangladesh

 
 

Sl. No.

Recommendations by Ambassador Rapp on 21 March 2011 

Extent of Implementation

1. 

Incorporate provisions for appeal against interlocutory orders 

No amendments were made to the Rules or the Act.

2. 

Incorporate provisions to adopt the ICC Elements of Crime 

No amendments were made to the Rules or Act.

3. 

Accused should be ensured rights under Part III of the ICCPR

Some amendments were made to the Rules or the Act to incorporate provisions of the ICCPR (Part III).

  • Presumption of Innocence (Rule 43(4) of the Rules)
  • Double jeopardy (Rule 43(3))
  • Right to a fair hearing (Rule 43(4))
  • Privilege of not having to testify against oneself (Rule 43(7))

Note: No provision has been made for appointing counsel of one’s own choosing.

4. 

Provisions regulating the detention of the accused. Ambassador Rapp cited examples from the ICTY And ICTR where an accused cannot be detained for more than 90 days before indictment.

Amendments were made to Rule 9(5) of the Rules stating that after an accused has been in custody for 1 (one) year without the investigation being concluded the accused could be detained in custody for a further period of 6 (six) months on exception circumstances. However, there is no right of bail after this period of 6 months expires.

 
 

This amendment has practically been of no benefit. When after the expiry of one year in relation to 4 (four) accused, counsel argued that the prosecution had failed to show any exceptional circumstances, the Tribunal observed that going through the ‘voluminous documents’ collected by the Investigators would constitute exceptional circumstances. Hence, the period of detention was extended beyond one year.

 
 

 
 

When defence argued that the issue of voluminous documents could not constitute exceptional grounds and even if it did it had not been raised by the Prosecution itself, the Tribunal stated that there was no need for Prosecution to raise the issue of ‘voluminous documents’. It was sufficient that the Tribunal ‘perceived’ that there was an exceptional circumstance in the form of voluminous documents.

5. 

Incorporate provisions to regulate questioning of suspects and accused (similar to those in the Rules42, 43, 63, 90(e) and 95 of the ICTR.

No amendments were made to the Rules or the Act in line with these provisions of the ICTR.

 
 

However, the following amendments were made to the Rules in 2011 to show token compliance with Ambassador Rapp’s recommendations-

 
 

Rule 53 gives absolute discretion to the Tribunal as to how evidence shall be recorded.

 
 

Rule 24(1A) allows for counsel for the accused to be present during a confession. Counsel is however prevented by the Rules from objecting to coercion

 
 

Rule 56(3) provides that statements made before the investigators are not admissible in evidence unless they lead to the discovery of incriminating material.

6. 

Incorporate provisions for release of accused during the pendency of proceedings (similar to Rule 65 of ICTY Rules)

No amendments were made to the Rules or the Act for implementing the provisions of Rule 65 of the ICTY Rules.

 
 

(Rule 34(3) tries to make a provision in line with Ambassador Rapp’s recommendation but gives to much discretion to the Tribunal. The conditions on which bail may be given have not been identified, and hence are of no use to the accused.)

7. 

Incorporate provisions for the disclosure of exculpatory material by the prosecution. Incorporate Rules similar to Rule 77-80 and 84 of the ICC Rules

No amendments were made to the Rules or the Act to incorporate these provisions of the ICC Rules.

8. 

Incorporate Rules for presumption of innocence and burden of proof on prosecution

Rule 43(2) provides for presumption of innocence.

 
 

Rule 50 provides that the burden of proof is on the prosecution. However, under Rule 51 the burden of proving an alibi is on the defence. 

9. 

Incorporate provisions for witness protection  

Rule 58A has incorporated provisions for witness protection.

10. 

Visas to be granted to foreign counsel whose advice is being sought  

Toby Cadman of 9 Bedford Row International, London who is advising the defence team was denied visa for entry into Bangladesh on 5 August 2011

 
 

The defence team relies heavily on the advice of three British lawyers – Steven Kay QC, John Cammegh and Toby Cadman – who have been engaged to assist the defence team in matters of trial. All three foreign counsel have been ‘black-listed’ by the Ministry of Home Affairs and will not be allowed to enter the country.

 
 

 
 

__________________________________________________

Act‘ refers to the International Crimes (Tribunals) Act, 1973.

Rules‘ refers to the International Crimes Tribunals Rule of Procedure, 2010.

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One Response to “Recommendations made by Stephen J Rapp, US Ambassador at Large, War Crimes Issues&the extent of their implementations by the International Crimes Tribunal and the Government of Bangladesh”

  1. Miah Seraj November 28, 2011 at 8:23 pm #

    This is totally unacceptable to a Human who has a little common sense. Only one Eyed trial is going on to make INDIA happy. India wants a civil war in our country to create a reason for intercession of Indian Army SADLY like neiboring Shikim & Buttan.

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