As we celebrate Bangladesh’s 47th Independence Day, another ‘intangible’ catastrophe lurks in the shadows.
This relates to the fact that critics of the International Crimes Tribunals (ICTs) of Bangladesh have questioned their legality and legitimacy for allegedly failing to ‘comply with the norms and standards of international law’ on fair trial or in other words the oft-quoted phrase ‘international standards of justice.’ This has led to the recommendation that the ongoing trials and unexecuted sentences of the ICTs be stayed ‘pending an independent international review’ and the establishment of an ‘international judicial mechanism’ supervised by the United Nations. Representatives of the Bangladesh Government have argued that the legality and legitimacy of the ICTs cannot be questioned because their proceedings are ‘completely in line with international standards’ and they uphold ‘most of the rights of the accused enshrined under Article 14 of the ICCPR’.
The latter claim relating to Article 14 isn’t far off the mark. The obsession critics and even supporters have for ensuring ‘international standards’ is, nevertheless, misconstrued. This is because it misinterprets the system and boundaries of the contemporary global order of fighting impunity, a system that has been created by the principle of complementarity enshrined in the Rome Statute of the International Criminal Court. In the modern-day global order of fighting impunity, ‘complementarity’ imposes the primary responsibility of prosecuting international crimes on the domestic courts of nation-states. The ICC takes up the role of a court of ‘last resort’ that intervenes only when a State is genuinely ‘unwilling’ or ‘unable’ to investigate or prosecute.
So what happens when a State Party to the Rome Statute decides to prosecute international crimes at the domestic level but while doing so adopts standards that do not fully adhere to the standards adopted in the Rome Statute or contemporary standards of international law? Do those domestic trials become illegal or illegitimate as critics of the Bangladeshi trials have argued? The answer to these questions is an unequivocal ‘no’.
States are not obliged to replicate the standards of justice emanating from the Rome Statute in their national laws that are enacted to combat impunity.
During the plenary meetings of the UN Diplomatic Conference of Plenipotentiaries held in June 1998, many delegates spoke on the proposed relationship between the ICC and national courts. During those meetings, the ICC was not identified as an end in itself, but rather the means to end impunity. Among others, James Crawford argued that as a consequence of ‘complementarity’, the ICC ‘would be integrated with the existing system of international criminal cooperation’ and that ‘it was not intended to displace existing national systems that were capable of working properly’. As a result, text of the Statute symbolized a merger of traditions from both ‘common’ and ‘civil’ systems of law and a culmination of efforts of a ‘diverse coalition of States from North and South’. The need to respect ‘the diversity of legal systems, traditions and cultures’ was acknowledged in a policy paper drafted by the ICC’s Office of the Prosecutor in 2003. ‘Complementarity’ is mindful not to expect that nation-states will adopt an identical set of laws and procedures to end impunity. Provisions of the Rome Statute left room for the element of diversity in the laws governing national criminal jurisdictions irrespective of whether they were part States that are party to the Rome Statute. It is also clear from those provisions that ICC standards of justice are not really meant to be applied beyond the proceedings of the ICC unless States apply their sovereign will and incorporate them into their own national laws. Therefore, there is little scope to argue that a domestic trial process automatically becomes illegal or illegitimate because they failed to uphold international standards of justice or because they failed to mirror the standards adopted in the Rome Statute. What this does not mean is that States are free to render ‘justice’ as they please.
The idea of being tolerant of diversity in standards of justice does not empower States to sacrifice the enforcement of due process norms ‘on the altar of state sovereignty’. States are bound by the confines of their Constitutions, other laws and their obligations under international law for the purposes of guaranteeing that the judicial process functioning to end impunity is fair, impartial and independent. The argument isn’t that contemporary standards of international law or international standards of justice aren’t relevant or that they lack importance. Rather, what is being argued is that a domestic justice process does not become illegal or illegitimate just because international standards were not followed to the dot.
There is scope to argue that the obsession with ‘international standards’ stems from the belief that ‘justice’ is a singular idea
. In one statement after another, Amnesty International has claimed that the hanging of war criminals ‘will not deliver justice’ to victims. Do human rights organizations exercise a monopoly over deciding what constitutes ‘justice’ and how it ought to be defined? Is it possible that the idea of ‘justice’ may have plural meanings and interpretations, and that those meanings may change when viewed from different vantage points? How effective are one-page statements that issue calls for moratoriums in languages and terminologies that do not ‘speak’ to societies that have undergone extreme levels of trauma and have been deprived of any form of justice for the greater part of four decades? While there is an undeniable trend towards the global abolition of the death penalty, universal consensus on ‘abolition’ is yet to exist and the death penalty in Bangladesh remains a lawful form of punishment. This may come as a surprise to academics and activists campaigning for abolition, but there is a serious dearth of any meaningful intellectual engagement about the abolition of the death penalty in Bangladesh. When a State which has essentially failed to hold to account the perpetrators of the most egregious crimes for the better part of four decades, is it surprising that a large section of the people belonging to that society will equate ‘justice’ with the imposing of the maximum punishment available to that system? These are questions worth thinking about. There are no easy answers.
Every single justice system has its fair share of strengths and weaknesses, irrespective of whether they are ‘international’, ‘hybrid’ or ‘domestic’. The judicial standards of justice adopted at the ICTs are not in harmony with the highest international standards, but they are followed to a reasonable degree. If we can agree that the word egregious means ‘gross’, ‘outrageous’, ‘notorious’, ‘shocking’ or ‘outstandingly bad’, then it is unlikely that the genuine weaknesses of the ICTs will qualify as egregious violations. The extent of the deviations of the standards of justice adopted by the ICTs are insufficient for their trials to be described as ‘show trials’. This is why the ICTs created by the International Crimes (Tribunals) Act 1973 cannot be deemed as illegal or illegitimate from the perspective of international criminal law, because it does not overthrow the principle of complementarity.
Of course, the constant evaluation of national criminal jurisdictions prosecuting the most serious crimes is necessary and should be welcomed because it assists in improving the quality of justice and documents important lessons for future judicial efforts. However, criticisms that do not take into account the context within which a judicial system operates and fumbles in appreciating the rules of assessing the legality and legitimacy of domestic courts functioning within the ‘complementary’ system of justice, is likely to shield the culture of impunity.
When a catastrophe takes place, the first step and perhaps the hardest step is acknowledgement of its existence.
The problem with failing to acknowledge is that in the process, we create road blocks in the struggle against impunity. While some of these catastrophes are tangible and can be easily perceived, most catastrophes are intangible and often invisible. Towards the end of Christopher Nolan’s "The Dark Knight Rises," Talia al Ghul to Batman’s utter disbelief plunges a dagger into him, and as she does so says: ‘You see, it’s the slow knife, the knife that takes its time, the knife that waits years without forgetting, then slips quietly between bones. That’s the knife that cuts the deepest.’ The argument that a domestic court is illegal or illegitimate because it doesn’t follow ‘international standards’ of justice is that slow knife that cuts the deepest. It is an argument that originates from a flawed understanding of the global system of justice created by the principle of complementarity. If this argument gains traction, the struggle against impunity will suffer, and the consequences will be catastrophic.
Dr. M Sanjeeb Hossain teaches law at the Warwick Law School
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