In recent times, there has been an alarming escalation in violence against people involved in the administration of justice. Witnesses, prosecutors, and judges of the International Crimes Tribunal, Bangladesh (ICT-BD) have been the prime target of these violent reprisals.
There have been crude bomb attacks on the residences of ICT-BD Chairman Justice ATM Fazle Kabir and a senior Judge of the Appellate Division of the Honourable Supreme Court of Bangladesh, Justice SK Sinha. The houses of several prosecutors too, were not spared from the blasts.
But the worst of the retaliation has been felt by the prosecution witnesses. A number of such witnesses, who testified against high profile war crimes suspects belong to Jamaat-e-Islami and BNP, have come under attacks in various parts of the country in the last one year.
Prosecution witness against convicted war criminal Delwar Hossain Sayedee, Mustafa Hawlader, was killed on December 10. Newspapers reported that other witnesses against Sayedee are also living under constant fear of violence in Pirojpur district. It is worth mentioning that the house of the complainant in one of the charges against Sayedee was attacked and vandalised in October this year.
On December 15, petrol bombs were hurled at the house and shop belonging to Ranjit Kumar Nath, prosecution witness against convicted war criminal Ali Ahsan Mujaheed. In May this year, a key witness against another convicted war criminal, Salahuddin Quader Chowdhury, was found dead in highly suspicious circumstances in Chittagong.
In March, key prosecution witness against Ghulam Azam and renowned musical personality, Ahmed Imtiaz Bulbul’s brother, Ahmed Miraz, was killed by unknown assailants.
It will be a shame for the entire nation if we fail to give adequate protection to the brave men and women who have accepted the challenge of testifying against powerful international criminals, those with sufficient clout to successfully evade the grips of justice for 42 years. It is even sadder to see that international organisations have to remind us of such a duty (HRW issued a statement on December 24: “Bangladesh: Investigate killing of Witnesses”). The question that naturally arises is thus: Why aren’t we protecting them?
The law as it stands
Unfortunately, Bangladesh still does not have a separate and distinct law for the protection of victims and witnesses of international or grave crimes. However, as for the victims and witnesses of cases at the ICT-BD only, there are certain legal provisions which can ensure the reasonable safety and security of witnesses and victims, if deployed effectively by the judges.
Chapter VIA of the International Crimes (Tribunals) Rules of Procedure 2010 is the key legal provision which deals specifically with “Witness and Victim Protection.” Rule 58.A(1) of the said Chapter reads: “The Tribunal on its own initiative, or on the application of either party, may pass necessary order directing the concerned authorities of the government to ensure protection, privacy and well-being of the witnesses and or victims. This process will be confidential and the other side will not be notified”. Further, Rule 58.A(2) provides for three specific methods of protection:
First, arranging accommodation (safe house) for victims and witnesses; second, ensuring security and surveillance during the stay of the witnesses and victims; and third, taking necessary measures to arrange police escort for witnesses and victims to and from the court.
Thus, there are several legal methods available to the ICT-BD using which they can take practical steps to protect the witnesses and victims who have been coming under attack in recent days.
If one looks at the international criminal law order, one can find that the only notable difference between the protection mechanisms contained in the rules for the ICT-BD and those of the international and hybrid tribunals like the International Criminal Court (ICC) and the tribunals in Yugoslavia (ICTY), Rwanda (ICTR), Sierra Leone (SCSL), Lebanon (STL) etc is the lack of a provision in our rules about establishing a specialised Victim and Witness Unit.
Such a unit supervises the overall protective services. Additionally, as stated at the outset, since there is an absence of a specific law to protect witnesses and victims in Bangladesh, the calls from many quarters to immediately enact the draft Witness Protection Bill 2011 has increased in recent times. Dhaka Tribune reports that this bill, although drafted and sent by the Law Ministry to the Home Ministry over two years ago, is still lying in a “deep freezer” ever since.
There is no doubt that we need to have a separate witness protection law at the earliest. And there is also no doubt that the witness protection mechanisms of the ICT-BD in particular could have been better in light of international models. However, as is evident from the above discussion, it is not an absence of legal powers per se which has resulted in so many incidents or attacks. The real reason, it seems, is the absence of implementation and evaluation of the existing provisions.
In my opinion, the most immediate solution (at least for the time being) is for the judges at the ICT-BD to play a more robust role in this regard. The judges need to be more proactive and make suitable protection orders for every vulnerable, or at risk witness. Rule 58A(1) clearly states that the protective measures can be taken either upon application or by the Tribunal of its “own initiative.” Thus, the law itself provides support for such activism.
Moreover, since these are trials are prosecuting international crimes as opposed to ordinary domestic crimes, the nature of the proceedings themselves allow these judges the freedom to depart from the traditional and adversarial nature of criminal proceedings, which required them to be silent referees as opposed to active case managers.
The judges need to be more inquisitorial and follow up on orders made for protection, constantly monitoring whether orders made are being implemented duly or not. If we look at the wording of Rule 58A(2), we can see that it reads: “The government shall… if so prayed for.”
In interpreting statutes, the word “shall” is read as “must.” Thus, if the Tribunal asks for a protective measure, the government must accede to any such request. There is, in any event, the law of contempt to penalise non-compliance with judicial orders. Hence, there is no reason to doubt the efficacy and binding nature of the measures to be taken by the judges in this regard.
However, before any discernible improvements become visible regarding preventing further attacks on witnesses and/or victims, increased coordination has to be achieved in this regard between law enforcers, judges, prosecutors, counsels and concerned officials from the relevant ministries of home and law, justice and parliamentary affairs.
In my opinion, the registrar of the ICT is perfectly placed to discharge this coordinating role, principally because of his neutrality as an official of the state. Unless coordination is achieved, even updating the existing mechanisms will not help.