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May 3, 2013

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Human Rights, Victims Rights

Victims Rights in Sexual Assault cases

Written by: Regina Paulose

The Verma Report

In the last couple of months, women’s and children’s rights have catapulted to the forefront of the international community due to tragic situations involving sexual assault. The most notable of these was the New Delhi gang rape in December 2012. This is not the first time these situations have happened. Why these situations have garnered this much media attention as opposed to similar situations that occur daily is an anomaly. However, the extensive spotlight has created a space for needed global discourse and critique of the current framework regarding victims’ rights.

One would be amiss to think that this problem is unique to India. In fact, in the research that was surveyed for this brief article, a vast amount of information indicates this is nothing short of a global endemic.

The December 2012 gang rape in New Delhi has forever changed the way women and children’s rights will be discussed in India. The tragic and grotesque situation, mobilized the people of India to protest inadequate laws that allow women and children to fall prey to those with an unforgivable appetite for sexual propensities. As a result the Government formed, under the leadership of Justice Verma,[1] the Committee on the Amendment to Criminal Law in India, which issued a report (Verma Report) in response to the huge public outcry. The Commission took responses from over 80 groups in addition to surveying laws from different countries.  The Commission’s conclusion after 200 + pages was simple.

Breathe life into your hollow laws and hollow words.

Although the report contains recommendations that the Indian legislature should adopt to address problems relating to sexual assault, it contains, what this author believes, to be a global framework that every country should consider in reevaluating and formulating laws that seek to protect victims from sexual assault.

The New Framework and its Four Pillars

Brutality/violence against women and children is a “deficiency [that] has to be overcome by leaders in society aided by systemic changes in education and social behavior.”[2] The report outlines what is broken down into four pillars which make up a new framework.  These pillars are not discussed in any particular order of preference.  Each pillar represents an area that will need to be improved alongside the other pillars[3] to allow shifts such as the one envisioned in the Verma Report.  Additionally, these four pillars are not discussed in minute detail, but serve as a launching point for more discussion which needs to involve holistic approaches.

Improvement of judiciary and government mindset

The judiciary, the guardian of the rule of law, should be continually up to date on the intricacies relating to sexual assault topics. The judiciary needs to change outdated conceptions that it may have of sexual assault victims.  These cases are victim dependent (99% of the time) and poor actions on the part of judges or a hostile courtroom can prevent a victim from participating in proceedings. In 2011, in Manitoba Canada, a Judge was scrutinized for his “archaic” statements when he analyzed the night of a sexual assault and said that “sex was in the air” and that the defendant was a “clumsy Don Juan.”[4]  In places such as the United States and Canada, judicial remarks such as these can be reviewed by an independent council or a bar association, which could result in punitive measures. However, punitive measures do not necessarily lead to a change in attitudes when these cases are presented.

It is important to address these attitudes that start from the judiciary and work its way through lawyers and juries. “Social attitudes are a thread running through the criminal justice system in response to rape.”[5] “Rape myths” as it is sometimes referred to “can directly or indirectly serve to excuse perpetrators and blame victims, and psychologists have found that they may also increase the likelihood that individuals will commit rape.”[6] There are also those who are of the opinion that the “rape myth” is “overstated” and challenge it on three grounds (1) some attitudes are based on opinions and facts (2) not all myths are about rape but rather how people negotiate sex and (3) there is little evidence that rape myths are widespread.[7]  Regardless of one’s position on the prevalence of rape myths, it still stands to reason that those who have the most power in interpreting laws and protecting victims should be knowledgeable in this area. These judicial players have an obligation not to perpetuate attitudes that continue to harm women and children. A victim should not make a decision to report or proceed with a case based on whether or not she will be believed by the attorneys, judge, or the jury.

Government attitudes towards sexual violence also need to change. It is evident that many government actors need to be educated on issues such as rape and women’s rights, in addition to utilizing their power to enforce laws. It would also be of use for legislatures and government players to review laws that have large gaps that allow women and children to fall prey to predatory acts.

Education/Retraining and Accountability of Law Enforcement

Law enforcement people are considered “arbiters of honor.”[8] This pillar has three components. The first component involves proper education and training on the root causes of sexual violence. Law enforcement needs to properly respond and not be apathetic, which can create a large change in how these situations are addressed.  This re-education and training unfortunately can present an uphill challenge as it also requires replacing existing beliefs in some communities. For example, law enforcement should be vigilant against “honor crimes” which are prevalent in different parts of the world. “Honor killings” or “honor based violence” are deeply rooted (origins stem from the Bible) and it is estimated that 5,000 honor based killings happen a year internationally.[9] Another example is eliminating the concept of shame. In sexual assault situations, the question should be about “bodily integrity” which translates into “integrity of the community.”[10]  This kind of shift in the mentality of law enforcement would allow more victims to come forward.

The second component involves the actual enforcement of the laws. In Kenya, where a large amount of sexual assault laws protecting women exist, women’s groups have challenged the enforcement of these laws based on the fact that police have done little to effect the law thus resulting in sex discrimination. A claim was submitted to the Kenya High Court as of October 2012 on this basis.[11] In Honduras it has been reported that there exists an “”apparent inability” of the government to effectively enforce legislation on the matter because of the lack of proper training for law enforcement personnel.”[12] In China, “when a victim has reported a sexual assault to police, seeking justice, hoping for the violator to be punished by the law, if the violator is powerful or backed by someone important, the victim will be pressured to solve the problem quietly, mostly to save face for the violator and related parties.”[13]

The third component has to do with creating laws or enforcing laws which hold law enforcement (including military) accountable. There are unfortunately many situations around the world in which law enforcement are perpetrators of this crime.  In Mexico, two police officers allegedly raped an Italian tourist while she was leaving a club at night. The officers also demanded money from the victims.[14] This was on the heels of another occurrence in Mexico where a similar situation occurred. It is also important to note that rape occurs with high frequency in conflict situations. As examined in different reports:

“mass rape in war has been documented in various countries, including Cambodia, Liberia, Peru, Bosnia, Sierra Leone, Rwanda, the Democratic Republic of Congo, Somalia and Uganda. A European Community fact-finding team estimated that more than 20,000 Muslim women were raped during the war in Bosnia. At least 250,000, perhaps as many as 500,000 women were systematically raped during the 1994 genocide in Rwanda, according to reports from the World Bank and UNIFEM. Most recently in Darfur, Western Sudan, displaced people have described a pattern of systematic and unlawful attacks against civilians by a government-sponsored Arab militia and the Sudanese military forces.”[15]

Prosecution of such crimes needs to occur and immunity should never be granted to personnel engaging in torture. For example, in Burma, no law exists which mandates the investigation of crimes by military troops because they are granted full immunity and are outside the jurisdiction of civilian courts. Minority groups have alleged that acts of sexual violence have occurred by the military, yet due to immunity, they walk free.[16]

Enforcement of State Obligations under International/Domestic Law

States have international obligations under the UN Declaration of Human Rights, the ICCPR, the ICESCR, and CEDAW to protect women and children. However, the world is not unified on various conventions and their provisions despite all the rhetoric. For example with the CEDAW, many countries had expressed that they would not include certain provisions (specifically contested are Article 2- equality of women and Article 16 – legal, cultural, and political rights for women).[17]  It should be noted that scholars do suggest based on various studies that treaty ratification does not necessarily equate to a better record of human rights performance.[18] In the bigger picture however, having such legislation implemented or modeled on a domestic level is important. In March 2013, US President Obama signed in to law the Violence Against Women’s Reauthorization Act (VAWA) which affords various protections for women.[19] One of the landmark items was the passage of provisions which protect Native American women from gaps in the law, which prior to VAWA did not allow them to prosecute perpetrators on reservations. This should be hailed as a major step forward in light of the fact that “federal prosecutors decline[d] to prosecute 67 percent of sexual abuse cases” on reservations and that “more than 80 percent of sex crimes on reservations are committed by non-Indian men, who [were] immune from prosecution by tribal courts.”[20]

Obligations of the State to provide for women and children

There is no question that the “state has a fundamental duty to protect women from gross/horrible violations of human rights.”[21] Women and children need to be protected from malnutrition, should be given access to means of economic empowerment, and should be safe from trafficking and domestic violence. These tools allow women to have a chance at being equals in society.  In India, the rhetoric of equality for women dates back to 1939.[22] Many probably assume that lesser developed countries are in desperate need of women’s rights laws. However, the 2012 World Economic Forum Global Gender Gap Report indicates that countries such as the Philippines, outranked the USA for protecting women’s rights.[23] In another survey conducted by TrustLaw, which ranked the G20 nations (but only ranked 19 of the 20), the survey found that Canada was more “egalitarian” than its counterparts and ranked China at #14 and India at #19.[24]  These indicators only serve to emphasize that “gender equality furthers the cause of child survival and development for all of society, so the importance of women’s rights and gender equality should not be underestimated.”[25]

Next Steps

Although the Verma report (a must read) is more detailed and more researched than this short article, there comes a time when law and rhetoric should create a perfect storm for action on sexual violence against women and children. It should be an embarrassment to any civilized society that sexual predators and rapists roam free without punishment. As studies continue to indicate, society will pay an ultimate price if women are not considered equal and action is not taken against this kind of violence. From a brief glance at each of these pillars, it is obvious that every single country in the world has a lot of work to do.

[1] Justice Verma passed away on April 22. Justice Verma was well known for his integrity and judicial activism. Read more on his death here: http://www.bbc.co.uk/news/world-asia-india-22260180.  The full report can be found here:  http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf

[2] Verma Report, p. 22 para 5

[3] I do not address every single problem that is associated with sexual assault in my post. This article in its limited capacity only seeks to address the large points made in the Verma Report to allow the reader an opportunity to continue the discussion.

[4] CTV News, Judicial Council reviews Sexual Assault Remarks, February 25, 2011, available at: http://www.ctvnews.ca/judicial-council-reviews-judge-s-sex-assault-remark-1.611990

[5] Charnelle van der Bijl and Philip N. S. Rumney, Attitudes, Rape and Law Reform in South Africa, The Journal of Criminal Law, 414-429, (2009).

[6] Dr. Brienes, “She asked for it: the Impact of Rape Myths” Psychology Today,  November 5, 2012, available at: http://www.psychologytoday.com/blog/in-love-and-war/201211/she-asked-it-the-impact-rape-myths

[7] Helene Reece, “Too much blame placed on popular prejudices against rape victims for low conviction rates”  LSE March 25, 2013, available at: http://www2.lse.ac.uk/newsAndMedia/news/archives/2013/03/Too-much-blame-placed-on-popular-prejudices-against-rape-victims-for-low-conviction-rates.aspx

[8] Verma Report, p. 93 para 37

[9] See Honour Based Violence Awareness Network: http://hbv-awareness.com/

[10] Verma Report, p. 93 para 38

[11] Liz Ford, How Kenyan Girls are using the law to fight back against rape, The guardian, December 4, 2012, available at: http://www.guardian.co.uk/global-development/poverty-matters/2012/dec/04/kenyan-girls-law-fight-rape

[12] Immigration and Refugee Board of Canada, Honduras: Update to HND32564.E of 15 October 1999 on violence against women, including social, government and police attitudes; whether state protection and redress available to victims of sexual violence is effective and sufficient; the general attitudes of such victims regarding the responsiveness of the state and the corresponding reporting rates; women’s organizations that assist victims of sexual violence, 18 October 2002, HND40207.E, available at: http://www.refworld.org/docid/3f7d4da111.html [accessed 3 May 2013]

[13] Zen Jingyan, “Sexual Assault victims suffer twice in China” Huff Post World, November 3, 2011, available at: http://www.huffingtonpost.com/zeng-jinyan/sexual-assault-china_b_1073693.html

[14] Rafael Romo, “Police Officers in Mexico suspected in alleged rape” CNN February 22, 2013, available at: http://edition.cnn.com/2013/02/21/world/americas/mexico-rape-police

[15] IRIN, “Our bodies – their battle ground: gender based violence in conflict zones” September 1, 2004, available at: http://www.irinnews.org/InDepthMain.aspx?InDepthId=20&ReportId=62817

[16] The International Campaign to Stop Rape and Gender Violence in Conflict, Stop Rape in Burma, accessed on April 26, 2013, available at: http://www.stoprapeinconflict.org/burma

[17] Specific objections from each country can be found here: http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm

[18] See Eric Neumayer, Do International Human Rights Treaties Improve Respect for Human Rights?, LSE Research Online, (2006) available at: http://eprints.lse.ac.uk/612/1/JournalofConflictResolution_49(6).pdf

[19] Jodi Gillette and Charlie Galbrath, “President Signs 2013 VAWA Act – Empowering Tribes to Protect Native Women” The White House blog, March 7, 2013 available at: http://www.whitehouse.gov/blog/2013/03/07/president-signs-2013-vawa-empowering-tribes-protect-native-women

[20] Louise Erdrich, “Rape on the Reservation” International Herald Tribune, February 26, 2013, available at: http://www.nytimes.com/2013/02/27/opinion/native-americans-and-the-violence-against-women-act.html

[21] Verma Report, para 18

[22] Verma Report, Chapter 1, para 25

[23] Emma Clarke, 10 Countries with Very Surprising Womens Rights Rankings, Policymic, available at: http://www.policymic.com/articles/11804/10-countries-with-very-surprising-women-s-rights-rankings

[24] Katrin Bennhold, “The Best Countries to be a Woman – and the Worst” International Herald Tribune, June 13, 2012, available at: http://rendezvous.blogs.nytimes.com/2012/06/13/the-best-countries-to-be-a-woman-and-the-worst/

[25] Anup Shah, “Womens Rights,” Global Issues, March 14, 2010, available at: http://www.globalissues.org/article/166/womens-rights. The author of this article delves into the various areas and the impact that lagging womens rights will have on each. He also focuses on topics such as the “feminization of poverty” which indicate that women suffer the most economically which has a snowball effect on society.  

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May 2, 2013

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International Criminal Court

Reflections on Victims Participation in the Lubanga Judgment

By: Goldah Nekesa Matete*

On 14 March 2012, Thomas Lubanga Dyilo (“Lubanga”) was convicted of committing, as co-perpetrator, war crimes consisting of enlisting and conscripting of children under the age of 15 years into the Force patriotique pour la libération du Congo [Patriotic Force for the Liberation of Congo] (FPLC), and using them to participate actively in hostilities in the context of an armed conflict not of an international character from 1 September 2002 to 13 August 2003 punishable under article 8(2)(e)(vii) of the Rome Statute (”Statute”).[1] Trial Chamber 1 (“Trial Chamber”) of the International Criminal Court (“ICC) rendered the unanimous judgement with two judges issuing separate dissenting opinions on some issues.

Article 68 of the Statute makes provision for the protection of the victims and witnesses, and their participation in the proceedings, at the ICC. The Statute effectively grants the victims the locus standi to take an active part in the proceedings as individual legal persons.

In the Lubanga trial there were a total of 129 victim participants authorised by the Chamber, 34 of which were female and 95 were male.[2] The Chamber divided the victim participants into two groups, each one represented by a Common Legal Representative.[3] In addition the Chamber authorised the Office of Public Counsel for Victims (OPCV)[4] to represent four more victims.[5]The 129 victims participated in the proceedings by introducing evidence, questioning witnesses, and advancing written and oral submissions.[6]

Following the victims’ application for participation in the proceedings, the Trial Chamber issued a decision (Judge Blattman separately and partially dissenting)[7] allowing them to participate in the proceedings even though some did not have official documents of identification.[8]This decision was appealed before the Appeals Chamber, mainly concerning the issue of victims producing formal identification before being authorised to participate in the proceedings. The Appeals Chamber partially reversed the decision, holding that the applicants could prove their identity by way of a range of official and non-official documents, based on the situation in DRC Congo and potential difficulties in obtaining and producing official copies of identity.[9] The Appeals Chamber further held that:

(i) a victim is someone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury, emotional suffering or economic loss;[10](ii)  participation by the victims must be in accordance to the provisions of Rule 89(1)[11] of the Rules; (iii) the applicants must demonstrate a link between the harm they suffered and the crimes faced by the accused;(iv) the applicants should demonstrate in written application that they are victims of these offences,[12] and that their personal interests were  affected.[13]

The Appeals Chamber also gave the victims’ the rights: to consult the record of the proceedings, including the index subject to confidentiality restrictions; to receive notification of all public filings and those confidential filings which concern them; to request the Chamber to use its broad powers to call all the materials it considers relevant for the determination of the truth; to participate in public hearing;  to file written submissions, and a right for anonymous victims to participate in the proceedings.[14]

The Chamber granted all 129 applicants the right to participate in the proceeding. All the applicants claimed to have suffered harm, either as a result of, the crime of enlisting and conscripting children under the age of 15 into the FPLC, or their use to participate actively in the hostilities, and others as a result of sexual violence,[15]torture and other forms of inhuman treatment which are not subject of the charges against Lubanga.[16]

Most of the victims were former child soldiers, although some are parents, or relatives of former child soldiers, and one is a school.[17] Some children were also granted rights to participate directly without an adult or legal guardian representing them.[18]Most of the victims in this case were provided with protective measures, in particular, anonymity, because of their vulnerable position living in areas of ongoing conflict.[19]Out of the total 129 victims, only 23 have been disclosed to the parties in the proceedings.[20] The Chamber also granted some victims dual status of victim and witness,[21]ruling that dual status persons do not accrue rights above and beyond those who are solely victims or witnesses.[22] The four victims represented by the OPVC were dual status victims; three gave evidence as witnesses during the trial on behalf of the School.[23] These three witnesses were provided in-court protective measures that included voice and face distortion and pseudonyms.

 

PARTICIPATION

The Rules of Procedure and Evidence (“Rules”) of the ICC provide for a definition of victims as ‘natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court.”[24]Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes.”[25]

The definition provided by the Statute restricts the of ‘victims’ to only those that have suffered harm as a result of the crimes charged; there must be a causal connection between the alleged crimes and the harmful results.[26]However the Chamber in its judgement relied on principle 8 of the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”as adopted and proclaimed by the General Assembly Resolution 60/147, to propoundabroad definition of the meaning of “victim.” The adopted definition reads as follows: “[s]omeone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury or emotional suffering or economic loss.” Inthe same vein, the Chamber gave rights to former child soldiers, parents, a school, relatives and legal guardians.[27]It is instructive to note that the Chamber treated the child soldiers as victims and not participants in the crime at this point, and persons who suffered under the hands of the victims were not considered victims within the set out definition of the Trial Chamber.[28]

This chosen definition broadens the characterization of victims to include those who were not directly harmed but suffered the damage as third parties. It has been argued elsewhere[29] that this is a correct approach in light of the huge collateral impact of international crimes on third persons and their immense emotional and psychological suffering. However, such a broad approach requires a comprehensive strategy to limit the number of indirect victim participants. Some scholars like Stefanie Bock suggest that indirect victim participants should in addition demonstrate the personal relationship between themselves and the direct victim, as well as provide evidence demonstrating the extend of emotional or physical harm they have suffered.[30]

It appears that the prosecution focused on the definition provided for in the Rules in charging Lubanga, hence the focus on the crime of enlisting and conscription of child soldiers, and entirely leaving out sexual offences crimes, which had a great number of victims who suffered as a consequence of the crime of enlisting and conscription of children under the age of 15 into FPLC.[31] It is indeed worth noting that the Chamber exercised its discretionary powers in allowing persons to participate in the proceedings as victims, and even then, it failed to confine itself to the strict definition of victims resulting in the broad range of person who participated as victim participants.[32]

During the Confirmation of Charges hearing, the Pre-Trial Chamber in assessing the application for victim participation did so, on a prima facie basis in consideration of the provisions provided in the Rules,[33] and not on the known legal threshold of “beyond reasonable doubt”which requires a high standard of proof. This is because, at the time of confirmation of charges hearing, it is not clear whether the alleged crimes have actually been committed by the accused or not, since the standard applied to refer a case to the Trial Chamber is on a prima facie basis.[34]

Some of the witnesses (witness P-0007, P-0008, P-0011 and P-0298) who were granted permission to participate in the proceedings,[35] as the information at that time, was sufficient to establish on a prima facie basis that they were victims,[36] lost their right to participate in the proceedings when the majority of the judges sitting on the case came to the conclusion that they were not reliable and they did not give accurate information to the Chamber.[37] Similarly the Chamber withdrew the right of P-0298 to participate in the proceedings while he had initially been permitted to as an indirect victim based on the information that his son had been recruited as a child soldier.[38] The Chamber withdrew his right to participate in the proceedings after hearing evidence that his son had in fact not been recruited as a child soldier. The Chamber, in my view, failed to correctly distinguish the roles played by dual status victim witnesses, thereby, incorrectly withdrawing the right to participate in the proceedings of these victims by assessing their victim status on a “beyond reasonable doubt” standard.

Rightly so, the Chamber’s decision to grant a person rights to participate in the proceedings at the Pre Trial phase should not be final. If the Chamber in its further investigation concludes that its prima facie assessment was incorrect, it should discharge and or appropriately amend any earlier order as to the participation, to the extent necessary.[39] This approach strikes a balance between unnecessarily restricting victims’ admission to the proceedings and the defence interest not to be unduly laboured with participants who are not victims strictly speaking.[40]

However Judge Elizabeth Odio Benito was of a different opinion as regards taking away the right to participate of victims whose testimony as witnesses was contradictory. [41] She states with regards to the victim witnesses who testified, “[t]hat […] the contradictions and weaknesses of these two individuals as witnesses in the proceedings should not affect their status as victims with the right to participate in the trial proceedings.”[42] Judge Odio Benito was of the opinion that with respect to the dual status victim witnesses, and based on the fact that different standards of proof are adopted (i.e. in the case of witness testimony, the standard is beyond reasonable doubt to establish whether an accused is guilty or not whereas in the case of a victim, a prima facie standard is adopted) it is incorrect to adopt the beyond reasonable doubt standard in determining whether a victim should continue exercising their right to participate in the proceedings or not based on their testimony as witnesses.[43]She also points that it is unfair to impose upon individuals with dual status a higher threshold as regards their victim status, while all other victims participating in the proceedings have not been subject to thorough examination by the parties and the Chambers.[44]It is on this basis that she concludes that the inconsistencies in the victim witnesses’ testimony do not necessarily mean that their evidence as to being victims should not be relied upon.

In light of an examination of the Statute, Rules, Regulation, academic works and case law one can conclude that the first judgement of the ICC is not entirely satisfactory vis-a-vis the protection of the interests of victims and victim witnesses. Indeed it would seem the court failed to develop watertight jurisprudence to safeguard the rights of victims and in particular, victim child soldiers.

I submit that the first error made by the Bench sitting on this case was that it failed to critically examine and analyse most issues at the Trial stage and instead relied heavily and sometimes almost entirely on the Confirmation of Charges Decision. This led to subsequent mistakes in the final decision. For instance, protection regimes adopted for victims were not addressed again at all at the trial stage and the Trial Chamber adopted in toto the position which was taken by the Pre Trial Chamber ruling out an independent legal and factual analysis on the same.

The Chamber’s choice to disregard the sexual violence crimes merely because they were not included by the prosecution in the charges against the accused was a disservice to the victims of the crimes of which Mr. Lubanga was found guilty. I agree with Judge Odio Benito’s dissenting opinion that sexual violence and enslavement are illegal acts and are directly caused by the illegal crime of enlisting, conscription and the use of children under the age of 15 years. The ICC’s constitutive and procedural regime establishes a high standard for the protection of victims and witnesses and for the Court to give anything less than the high standards is impermissible. It would seem, from the said decision, that the court developed jurisprudence that limited its powers to punish crime and especially sexual crime that was proven beyond reasonable doubt to be committed, but where the prosecution in a most astounding error failed to include in its charges. Should the Court turn its back on clear and evident crimes committed that fall within its jurisdiction merely because the said crimes were not incorporated into the charges against an accused(s) person(s)? Certainly not. It is instructive at this stage to note that many countries around the world have criminal jurisdictions in their municipal laws that allow a court to punish lesser offences even when they were not incorporate in the charges but the same were proved during trial. The Trial Chamber could have incorporated this approach in this respect, since the Legal Representatives of Victims, severally raised the issue of sexual crimes during trial, and the Defence had a chance to provide rebuttal evidence. Should one argue that this would be prejudicial to the accused, then; an accuseds’ rights should not defeat justice and truth at any time or else it will be a sad day for justice, and especially to the victims who suffered the heinous crimes.

The Chamber is the custodian of the law and the interest of all parties involved in a trial. However, it does look like the Chamber was more aligned to protecting the rights of the accused as opposed to balancing the rights of all parties; it’s based on this that the Chamber treated victim witnesses as witnesses hence the taking away the rights of some of them to participate in the proceedings. As discussed above, I agree entirely with the sentiments put forth by Judge Benito regarding this issue and add that, fair trial should be that and nothing else, to apply different standard to a party in a trial is in itself a violation of the principle of fair trial.

One of my greatest concerns is the failure of the Chamber to offer a legal definition of active participation. The adopted ‘case by case’ approach shows that the Chamber did not simply want to engage in a conclusive discussion hence they opted to leave the definition open. This case was mainly focused on the concept of active participation, and not having a definition at the end of the judgement is unsatisfactory. The Chamber had a chance to set down a legal definition that would have gone into setting down the Courts jurisprudence on the same, but instead it opted to leave it for the future. The failure to have a definition in essence means none of the questions have been comprehensively answered, and in particular, whether child soldiers engaging in hostilities makes them active participant or not. It is understandable to protect them and categorise them under victims, but in so doing a comprehensive definition as well as an approach for future cases should have been made.

It is however very encouraging to note that the Trial Chamber sought and resolved to inculcate Victim Participation in the trial. I also applaud the Chambers for ensuring that the victims got a chance to participate actively in the Trial, and they had a chance to express their needs and interests to the Court.  A lot needs to be improved especially with respect to the numerous delays due to putting together relevant regimes for victim participation and the overall conduct of the trial. Since the law is a living instrument, then I have reason to be optimistic that jurisprudence in the afore-discussed paper shall develop towards a more appropriate system that will encourage victim participation in a more effective manner.

 

 

* Holds a Masters of Laws, (LL.M) degree in International Crime and Justice from UNICRI, a United Nations institute in Turin, Italy; a Bachelor of Laws (LL.B) from Moi University, Kenya, and a Post Graduate Diploma in Law from the Kenya School of Law. Goldah is also an Advocate of the High Court of Kenya. She currently works and resides in The Hague and can be reached at, goldah.nekesa@gmail.com

[1]Information retrievable on the International Criminal Court website at http://www.icc-cpi.int/iccdocs/PIDS/publications/LubangaENG.pdf, last visited 14 April 2013.

[2]Prosecutor v Thomas Lubanga Dyilo,Decision on Victims’ Participation, 18 January 2008, (“18 January 2008 Victims’ Participation Decision”), para. 32.

[3]Prosecutor v. Thomas Lubanga Dyilo, Trial Judgement (“Lubanga Trial Judgement’’), 14 March 2012, para. 14; Kai Ambos, ‘The first Judgement of the International Criminal Court; A Comprehensive Analysis of the Legal Issues, (2012) (“Kai Ambos”).

[4]See more information on the OPCV at:

http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Victims/Office+of+Public+Counsel+for+Victims/; The manual at http://www.icc-cpi.int/iccdocs/PIDS/OPCV/OPCVManualEng.pdf last visited on the 15 June 2013; Paolina Massida and Sarah pellet, “Role and Mandate of the Office of the Public Counsel for the Victims” in Carsten Stahn and Goran Sluiter (eds), The Emerging Practice of the International Criminal Court (Nijhoff, Leiden, 2009) 690; Regulation 80(2) of the Regulations of the Court;  Regulation 81 of the Regulation of the Court on the support role of the OPCV to the Legal Representatives for victims.

[5]Lubanga Trial Judgement, para. 32.

[6]This was done by the leave of the Chambers, Lubanga Trial Judgement, para.13.

[7] 18 January 2008 Victims’ Participation Decison, para. 32.

[8]18 January 2008 Victims’ Participation Decision,para. 14.

[9]Prosecutor v. Thomas Lubanga Dyilo,Judgement on the Appeals of the prosecutor and The Defence against the trial Chamber 1’s Decision on Victim Participation of 18 January 2008, ( “11 July 2008 Appeals Decision on Victim Participation”) 11 July 2008, para.

[10]Lubanga Trial Judgement, para. 14; The Trial Chamber , based on the Basic Principles and Guidelines on the Rights Law and Serious Violations of International Humanitarian Law Adopted by the United Nations General Assembly, Resolution 60/147, 16 December 2006, Principle 8.

[11] The Chamber in exercising its discretion, can reject the victims’ application to participate in the proceedings, or limit them to specific issues, or allow the application and give them rights including, to make opening and closing statements. In case where the application is rejected, a fresh application can be made following the same procedure by the victim; Rule 89(3).

[12]Lubanga Trial Judgement, para, 14.

[13]Lubanga Trial Judgement, para.14.

[14]Lubanga Trial Judgement, para. 14.

[15]30 victims (18 female and 12 male) referred to acts of sexual violence which they either suffered or witnessed; Lubanga Trial Judgement fn 54.

[16]Lubanga was only charged for the crime of enlisting and conscripting children under the age of 15. Sexual offences were not prosecuted and neither were torture and other forms of inhuman treatment charged.

[17]Lubanga Trial Judgement, para. 17.

[18]Prosecutor v. Thomas Lubanga Dyilo, Corrigendum to Decision on the applications by victims to participate in the proceedings, 13 January 2009, paras 67-72.

[19]Lubanga Trial Judgement,para. 18.

[20]Lubanga Trial Judgemtn, para. 18.

[21]18 January 2008 Victim Participation Decision, paras 132-134.

[22]Prosecutor v. Thomas Lubanga Dyilo, Decision on Certain Practicalities Regarding Individuals who have the Dual Status of Witness and Victims, 5 June 2008, para. 52.

[23]Prosecutor v. Thomas Lubanga Dyilo, Decision on the Request by Victims a/0225/06 and a/229/06 and a/270/07 to Express Their Views and Concerns in Person and to Present evidence during the Trial, 9 July 2009 (Public Document), paras 39-40; Lubanga Trial Judgement, para. 21.

[24]Rule 85(a).

[25]Rule 85(b).

[26]Kai Ambos.

[27]Prosecutor v Thomas Lubanga Dyilo, Redacted Version of Decision on “Indirect victims” ,Trial Chamber 1, 8 April 2009, para.52.

[28]Lubanga Trial Judgement , para.14.

[29]See Kai Ambos, p.2.

[30] Stefanie Bock, das Opfer Vordem International en Strafgerichtshof (Ducker &Humblot, Berlin, (2010) pp 446-      447.

[31]Lubanga Trial Judgement, para.16; See also note 15 above.

[32]Lubanga Trial Judgement, para.16.

[33]Lubanga Trial Judgement, para.15.

[34] Situation in the Democratic Republic of the Congo, Decision on the Application for the participation in the Proceedings, January 2006, paras 97-98; Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, 29 January 2007, (“Lubanga Confirmation Decision”), paras 1,15.

[35]Prosecutor v. Thomas Lubanga Dyilo, Decision on the Application of victims to participate in the proceedings, 15 December 2008.(“ 15 December Decision on Victim Participation”)

[36] In accordance to, Rule 85 of the Rules.

[37]Lubanga Trial Judgement, para, 484.

[38]Prosecutor v. Thomas Lubanga Dyilo,Decision on the supplementary information relevant to the application of 21 victims, 21 July 2009, (“21 July Decision”) para.39.

[39]See for Example, Prosecutor v. Thomas Lubanga Dyilo, (“Lubanga Trial Judgement”), para485.

[40] See also Kai Ambos, p. 15.

[41]Prosecutor v. Thomas Lubanga Dyilo, Separate and Dissenting Opinion of Judge Odio Benito (hereinafter Judge Benito’s Dissenting Opinion attached to the Judgement, (“Judge Benito’s Dissent”) para.25.

[42]Judge Benito’s Dissent, paras 25-26.

[43]Judge Benito’s Dissent, para. 26.

[44]Judge Benito’s Dissent, para.35.

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April 17, 2013

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Bangladesh Tribunal (ICT), Extraordinary Chambers of Cambodia, ICTR, ICTY, International Criminal Court, Special Court for Sierra Leone, STL

Witness Protection and the ICT in Bangladesh

Written by: Umme Wara, Lecturer of Law, Jagannath University

The free and truthful participation of witnesses to testify before the Court largely depends on the protective and security measures provided by the concerned Court in any crimes Tribunals as witnesses always have some reasonable fear to be suffered furtherance by the defense party. Since 2010, when Bangladesh started the trial of war criminals the security issue of those who testify became an imperative issue to be determined through relevant national instruments and international experiences. In this regard we will look in to the measures for witness and victim protection in other international and hybrid tribunals as well as the International Crimes (Tribunals) Act (ICT), 1973 which can be referred to the proposed law on victim and witness protection as further edition.

The witness and victim protection and support provisions of international and hybrid criminal tribunals: The Statutes of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Court (ICC), the International Criminal Tribunal for Rwanda (ICTR), the International Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), and the Special Tribunal for Lebanon (STL) inserted provisions for victims and witness protection where the Rules of Procedure and Evidence provided policies to implement those provisions of the statutes effectively. For example, Article 68 of the Rome Statute on the International Criminal Court provides that “the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means,” noting that these measures should be implemented in particular in the case of a victim of sexual violence. This statutory provision regarding in camera proceedings is implemented through specific sections of Rules 72, 87, and 88 of the Rules of Procedure and Evidence.

Among other functions, these rules define the appropriate use of in camera proceedings consistent with the statute. They also lay out the in camera procedure to consider relevance or admissibility of evidence related to consent in alleged crimes of sexual violence and the specific procedures, including notice requirements, for requesting in camera proceedings and other available measures.

Provisions guaranteeing the victim and witness protection and applying explicit language conditioning these protective measures on the accused’s right to a fair trial are common to all statutes. For example, the statutory language may specify that the measures cannot be prejudicial or that they must not be inconsistent with the rights of the accused.

Summary of approaches to victim and witness protection in different statutes and Rules of Procedure and Evidence:

In order to properly understand the protections that the ICT affords to witnesses, it is important to look at the approaches taken by the other existing international criminal tribunals.

ECCC approach: is a very broad directive that proceedings shall respect the rights of victims and the accused and that the Court shall take measures to protect victims and witnesses. (See specifically Article 33, and Rules 12, 24, 25, 29, and 60).

ICTY and ICTR approach: has a directive that proceedings shall respect the rights of victims and the accused and that the Court shall take measures to protect victims and witnesses. It also contains an explicit provision that victim and witness protection measures shall be incorporated in the Rules of Procedure and Evidence adopted by the judges. (See specifically Articles 14, 19, and in particular Article 21 of the ICTR statute, Articles 15, 20, and in particular Article 22 of the ICTY statute and Rules 34, 53, 69, 70, 75, 77 and 79,ICTR and ICTY )

SCSL approach: the rights of accused to a fair and public hearing are subject to witness protection measures. It also provides for establishment of Victim and Witness Unit offering protective services. It specifies that consideration should be given to employment of prosecutors and investigators experienced in gender-related crimes. (See specifically Articles 15, 16, and 17 of the statute, and Rules 34, 69, 70, 75, and 79)

STL approach:  the rights of accused to fair and public hearing subject to witness protection measures. It provides for establishment of Victim and Witness Unit offering protective services and for participation of victims in proceedings. It provides for access to victim compensation. There is an explicit provision that victim participation and victim and witness protection measures shall be incorporated in the Rules of Procedure and Evidence adopted by the judges. (See specifically Articles 12, 16, 17, 25, and 28 of the statute and Rules 50, 51, 52, 93, 116, 133, 137, 139, 159, and 166).

ICC approach: Comprehensive statutory provisions establishing Victim and Witness Unit and specifying victim and witness protection obligations of Prosecutor, pre-trial chamber, and trial chamber provide protective measures, particularly in cases of sexual violence. Also includes provisions on victim participation, reparations, a victim trust fund, and specific provisions for the protection of victims involved in requests for assistance. (See specifically Articles 43, 53, 54, 57, 64, 75, 79, 87, and in particular Article 68 of the statute and Rules 16, 17, 18, 19, 43, 72, 76, 81, 87, 88, and 112)

ICT: Though the 1973 Act does not contain any provision regarding witness and victim protection, the Rules of procedure has been amended in June 2011 where the term “Victim” has been defined (Sub Rule 26 in Rule 02) as a person who has suffered harm as a result of commission of the crimes under section 3(2) of the International Crimes (Tribunals) Act, 1973.” Besides, under the new Chapter VIA, a new Rule 58 A(1) has been inserted on Witness and Victim Protection which says “[t]he 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”. Sub Rule 02 inserted arrangements of accommodation of witnesses or victims and other necessary measures regarding camera trial and keeping confidentiality as necessary where violation of such undertaking shall be prosecuted under section 11(4) of the Act.

The success of these protective measures is yet to be proved especially with regard to the sexual violence witnesses. Besides holding the camera trial, the Tribunal should take other protective measures so that the witnesses come forward more to testify before the Tribunal.

Lastly, the proposed national law on victim and witness protection addresses many significant needs of members of this vulnerable group, and acknowledges the importance of support mechanisms that address physical, psychological, and economic wellbeing of victims and witnesses who will testify before the Court. However, the proposed legislation does not provide comprehensive measures compared to those provided by international and hybrid criminal tribunals. So if we want to ensure the safety and security for witnesses of any crime in future, we need to take certain guidelines from the international and hybrid tribunals which are consistent and feasible to the present socio-economic context of Bangladesh.

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April 17, 2013

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Bangladesh Tribunal (ICT), Genocide

Domestic War Crimes Tribunal in the International Context: Bangladesh

Written by: Iffat Rahman [1]

Here in Dacca we are mute and horrified witnesses to a reign of terror by the Pak Military. Evidence continues to mount that MLA authorities have a list of Awami League supporters whom they are systematic and shooting them down.[i]

The Second World War has significantly shaped the human rights field and it has led to many Conventions and international laws and furthered the establishment of the rule of law for war crimes and prosecuting war criminals. Furthermore, to prevent and punish future crimes against humanity, in the shadow of the Holocaust, on 9 December 1948, the United Nations passed the Convention on the Prevention and Punishment of Genocide, which came into effect in 1951. One year later, Pakistan signed the treaty on Convention on the Prevention and Punishment of Genocide on 11 December 1948 and ratified it on 12 October 1957. However, even the treaty did not prevent the Pakistani Army from committing one of the worst genocides in 1971 when Bangladesh was separated.  Justice was never served for the victims until recently when the government of Bangladesh established the International Crimes Tribunals (ICT) where they are prosecuting people who collaborated with the Pakistani Army in 1971.

Recently, the ICT in Bangladesh has created a division within country in half and it had been reported that more than 80 people were killed in clashes over the Tribunal’s verdict and chaos followed. Many Hindu houses were burned down. The international justice community has been quick to point out that the current party in power, Awami League, and the current leadership of Sheikh Hasina, Prime Minister of Bangladesh, is after revenge rather than justice. Modeled after the Nuremberg trials, the tribunal, which has commenced in 2010, repeatedly faced criticism from the international community about the fairness and the openness of the trials. So far, the ICT has indicted 11 people for collaborating with the Pakistani Army and most of them hold high positions within the two opposition parties, Jamaat-e-Islami and Bangladeshi Nationalist Party. Abul Kalam Azad, member of Jamaat-e-Islami, was sentenced to death in absentia and the ICT gained quite a bit of attention after Mr. Abdul Quader Molla, senior leader of Jamaat-e-Islami, whose previous sentence of life imprisonment was overturned and received death penalty after a popular protest. Delwar Hossain Sayeedi, leader of the Jaamaat-e-Islam, was sentenced to death.

Is it genocide?

Along with the genocide in Rwanda, the Holocaust in Germany, the Bangladeshi atrocity was one of the worst atrocities committed in the 2Oth century. However, unlike the other genocides, the Bangladeshi genocide is one of the least studied genocides in the modern day history.  Bangladesh suffered a violent birth and whether or not, the war between East Pakistan and West Pakistan was genocide has been debated among the scholars many times. The war created 10 million refugees. According to the Convention on the Prevention of and Punishment, genocide is:

Article 2

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  • (a)      Killing members of the group;
  • (b)      Causing serious bodily or mental harm to members of the group;
  • (c)      Deliberately inflicting on the group conditions of life calculated to      bring about its physical destruction in whole or in part;
  • (d)      Imposing measures intended to prevent births within the group;
  • (e)      Forcibly transferring children of the group to another group.[2]

 

The massacre that happened in Bangladesh clearly fits within the realm of the definition of genocide. At that time, press rarely called it genocide but it is without a doubt that the Pakistani Army targeted Hindus selectively. The Hindu Bengalis became the Jews of Germany for the Pakistani Army. They were hunted down, killed, and the Pakistani Army unleashed a massacre that took place on defenseless villagers, peasants, students, mothers, and children.  According to confessions by Pakistani army soldiers and officers, they were ordered to kill Hindus, Kafirs (non-Muslims) and to show no mercy. Bengalis were seen as an inferior race. Lastly, India spoke out against the genocide, condemning and calling it,  “savage and medieval butchery” and “preplanned carnage and systematic genocide.”[ii] Telegrams were sent from the American Embassy to Washington labeling the massacre as “selective genocide”.  Bengali Army officers within the Pakistani Army were disarmed and executed. The massacre happened under a control command system and it was well planned by the West Pakistani Army. According to, A. Dirk Moses,

Yahya Khan, the Pakistani President, was “pushing through its own ‘final solution’ of the East Bengal problem.” Officers he interviewed told him that they were “determined to cleanse East Pakistan once and for all of the threat of secession, even if it means killing off two million people and ruling the province as a colony for 30 years.” “Pogroms” were instituted against recalcitrant villages in “kill and burn” missions. Entire “villages [were] devastated by ‘punitive action’,” which authorities called a “cleansing process.” Hindus were targeted for “annihilation,” because they were thought to be a minority of unscrupulous merchants who dominated the economy and siphoned off wealth to India.[iii]

When a massacre happens at a level where millions of people were killed because of there is a difference in religion, ethnicity and race, then it is a clear case of genocide.

 

A Brief History

There were many events led up to the genocide in Bangladesh. It is impossible to separate Bangladesh’s history from the partition of India. The partition also separated Bengal province of British into East Bengal and later on to East Pakistan and the West Bengal.  In 1948, Bengali movement starts where 54% of the population in Pakistan spoke Bengali and minority of the population spoke Urdu in West Pakistan where population also spoke Punjabi, Baluchi, Pashtun and Sindhi. Before that year, in 1947, a resolution advocated for Urdu to be the sole language of Pakistan, which caused Bengalis to protest, and later transformed into a movement. In 1949, the All Pakistani Awami Muslim League was formed and later changed into All Pakistani Awami League. In 1955, Sheikh Mujibur Rahman, then elected General Secretary, was re-elected as the leader of the Party and name of the Party changed completely to Awami League. Pakistan became an Islamic Republic and Bengali became a state language along with Urdu. In 1956, Awami League leaders demanded for provincial autonomy in the drafted constitution of Pakistan. On 1958, General Ayb Khan exiles the president of Pakistan and assumes all power. Slowly, over the years, Sheikh Mujibur became the prominent person in East Bengal and called for independence of Bangladesh. The atrocity started with a military operation called, “Operation Searchlight” which aimed to crush the Bengali movement and due to West Pakistan’s view of Bengalis being racially inferior.[iv] Attack was mostly targeted towards Hindus in East Pakistan and the casualty was great. According to some sources, three million people have died, making Bangladeshi Genocide to be one of the biggest genocides in the 20th century. The Pakistani Army targeted students, intellectuals and raped women and more than 7,000 people have died in the first massacred by the Pakistani Army. According to President Yahya Khan, Pakistani troops have to “kill three million of them (Bengalis)” in order to destroy the movement. Many scholars believe that the Pakistani generals thought Bengali National Movement was initiated by the Bengali intellectuals and Hindus, which made them the primary target.[v]

It is without a doubt students were targeted because students called for provincial autonomy, progressive laws and not a division along the line of religion.  The students were seen as a threat as much as the Language Movement that was taking place but the students later became the most prominent force for the evolution of Bengali Nationalism in Bangladesh.[vi] Students at the Dhaka University were to raise the flag of an Independent Bangladesh.  Pakistani Army violently attacked the dormitories of Dhaka University where a substantial amount of non-Muslim resided at that time. It should be noted that the massacre that took place happened on 25th March took place on Dhaka University campus and the campus was shelled and remaining students were shot, killed and gender or age didn’t matter in the killing spree.  When the dorms were emptied out, killing spree moved to villages. Students were shot at sight, interrogated and tortured to death.[vii]

It is estimated that the Pakistani Army raped approximately 200,000 women and girls.[viii] Pakistani Army and their collaborators have made girls and women targets through direct rape and through gendercide where men were killed off leaving the women vulnerable.

After 9 months of guerilla tactics by the Bengalis, in the final weeks of the war, India heavily supported Bangladesh and on 16th December 1971 Pakistan surrendered to Bengali and Indian troops.[ix]

A domestic affair

Technically known as the International Criminal Tribunal, there is very little international commitment is made to the trial and there is no way of knowing how much international standards are being made applied. When Bangladesh ratified the ICC Rome Statute in 2010, it became the first country in South Asia to ratify the treaty. The Rome Statute was mainly ratified so the government of Bangladesh would be able to proceed with the trials.  The International Crimes Tribunal Act 1973 was established to proceed with the prosecuting people who have committed crimes against humanity, war crimes and other crimes under international law. Under the ICT Act, many people were being investigated along with Pakistani Army officers. The investigation brought in charges against 195 Pakistani Army officers; however, the Pakistani Army officers were given amnesty and returned back to Pakistan under a trilateral treaty between Bangladesh, Pakistan and India. No other government took the initiative to prosecute the people who have collaborated with Pakistani Army until now. [x] When India brought the case against Pakistan to the International Court of Justice for violation of Genocide Convention, the charges were dropped because of diplomatic agreement and Bangladesh resisted in taking action against Pakistan at the ICJ.[xi]

ICT is one of the most fascinating and complicated war tribunals to take place and it can set a precedent example for countries in South Asia and Southeast Asia.  International paradigm has begun to shift and the power has been shifting to Asia. This Tribunal will play a big role in establishing a shift in practicing international laws in a domestic setting and also because it is not an UN tribunal and it had been fully sponsored and dictated by the government of Bangladesh.

According to Sanoj Rajan, Associate Director of the Program on Humanitarian Policy and Conflict Research at Harvard University,  “decision to avoid any international collaboration in the ICT was exclusively that of the Govt. of Bangladesh. The only non Bangladeshi involvement was that of United States Ambassador – at – Large for War Crimes, Mr. Rapp which was vehemently resisted by the Bangladesh.” He believes that “an initiative like this is always welcomed by the international community including UN, but the concern majorly is about the fairness of the proceedings. In ICT also there are many reasons why international community should be concerned on the fairness of the trial and that is what reflects in most of the literature on the topic.”[xii] The European Union also offered to assist with the tribunal.

The case of death penalty

One of the key differences between the ICT and the other international tribunals it the implication of death penalty. Under the Rome Statute, the ICC is not permitted to give death penalty to the guilty and currently no other tribunal has managed to give death penalty. When it comes to death penalty, Bangladesh is a retentionist country and methods of practicing the death penalty are by hanging and shooting. It is highly debatable if death penalty is unconstitutional in Bangladesh or not. Bangladesh still practices death penalty but the number of death penalty that has been decreased dramatically within the last year. Most of the death penalties took place since 2008 was for murder. Altogether with seven other countries, there were only 38 official executions that were carried out but there were 45 death penalty verdicts were imposed in Bangladesh in the last year.[xiii] However, according to Death Penalty Worldwide, an organization that monitors death penalty and the countries that are practicing it, claims that there were zero death penalties and there are at least 1172 people waiting to be prosecuted under death penalty.

It should be noted that that Bangladesh is part of the International International Covenant on Civil and Political Rights. Technically, ICCPR, does not prohibit death penalty and second Optional Protocool to the ICCPR calls for aboliton of death pentaly during peacetime and Bangladesh have not adopted the second optional protocol to the first treaty.   Mr. Abdul Quader Molla’s death sentence presents an interesting dillemma for the ICT. It also begs the question if the trials are fair and meeting international standards. In the beggining, Mr. Molla was given life imprisonment; however, after a popular protest, he recieved a life sentence. Under the ICT Act the government can give him the death sentence but the trials are closed off to the international community. According to the Bangladesh Laws (Revision and Declaration Act 1973)

Article 121 states that:

Whoever wages war against Bangladesh, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or 42 [imprisonment] for life, and shall also be liable to fine. Illustration A joins an insurrection against Bangladesh. A has committed the offence defined in this section.

And under the ICT Act 1973, under the sentence article,

20. (1) The Judgement of a Tribunal as to the guilt or the innocence of any accused person shall give the reasons on which it is based: Provided that each member of the Tribunal shall be competent to deliver a judgement of his own.

(2) Upon conviction of an accused person, the Tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper.[xiv]

These articles clearly give permission to give the death sentence for the guilty, however, this becomes confusing since Mr. Molla was awarded life imprisonment and the guilty verdict was changed to the death penalty. Death penalty for Mr. Molla was sought after the protest on 5 February 2013, calling for a death sentence. Since Bangladesh is a party to the ICCPR, Bangladesh is obligated to provide fair trials for Mr. Molla.  Overturning a sentence to death penalty makes Bangladesh guilty of violating the ICCPR treaty, under the provision of Article 15, where it clearly states that, “nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.”[xv] The tribunal in Bangladesh repeatedly failed to keep up with the international standards when it comes fair trails. Organizations such as International Commission for Jurists and No Peace Without Justice have also questioned its authenticity of the trial.

The first successful trials took place on genocide was with the International Criminal Tribunal for Rwanda. However, had the Bangladeshi tribunal proceeded in the 1974, it could have set precedent for the war crimes tribunals now. However, there is an increasing concern about the fairness of the trials that are taking place. The Bangladeshi government should be applauded for their efforts in trying to bring justice to the people who have suffered greatly and to the rape victims, but it seems like the Bangladeshi government is after vengeance than justice. The Bangladeshi government should welcome collaboration from the international justice community. Together, they can help to bring justice and help to reconcile.

[1] The author is a graduate of McGill University and currently residing in Canada. She has recently interned with civil party lawyers at the Extraordinary Chambers in the Courts of Cambodia.  Before then, she worked on Will to Intervene Project at the Montreal Institute of Genocide Studies.

[i] U.S. Consulate (Dacca) Cable, Selective Genocide, March 28, 1971, Confidential, 2 pp.
Source: Record Group 59, Subject Numeric File 1970-73, Pol and Def, Box 2530

[ii] Moses, Dirk A. The United Nations, Humanitarianism,  and Human Rights War Crimes/Genocide Trials for Pakistani Soldiers in Bangladesh,  1971–1974  See : http://dirkmoses.weebly.com/uploads/7/3/8/2/7382125/moses_east_pakistan_in_hoffmann_human_rights.pdf

[iii]  Ibid. Moses, Dirk A.

[iv] Shariach, Lisa. Rape as Genocide: Bangladesh, the Former Yugoslavia, and Rwanda  New Political Science.  See: http://www.tandfonline.com/doi/pdf/10.1080/713687893

[v] Bangladesh Genocide Archive. See: http://www.genocidebangladesh.org/

[vii] Ibid. Ahmed, Anis.

[viii] Genocide Watch. The 1971 Bangladesh Genocide. Coordinator of the International Alliance to End Genocide.  See: http://www.genocidewatch.org/bangladesh.html

[ix] Ibid. Genocide Watch.

[x] Jalil, Abdul.  War Crimes Tribunals in Bangladesh: A Socio-Political and Legal Impact Analysis ICSR. See:

http://dx.doi.org/10.5296/jsr.v3i2.2484

[xi] Ibid. Genocide Watch.

[xii] Email correspondent with Professor Sanoj Rajan

[xiii]  Keck, Zachary. The Death Penalty: Fading Into the Past? The Diplomat. See: http://thediplomat.com/the-editor/2013/04/12/the-death-penality-fading-into-the-past/

[xiv] Government of Bangladesh. International Crimes (Tribunals) Act 1973, . See: http://bdlaws.minlaw.gov.bd/pdf/435___.pdf

[xv] International Covenant on Civil and Political Rights. University of Minnesota. See: http://www1.umn.edu/humanrts/instree/b3ccpr.htm

 

 

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April 6, 2013

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Human Rights

International Wrongful Convictions: The Unwritten Rules

Written by: Janis C. Puracal, an appellate attorney at the law firm of Bullivant Houser Bailey in Portland, Oregon.

 

 

At this time last year, my brother was being slowly starved to death in a Nicaraguan prison.  I had been fighting for Jason as part of his defense team for nearly a year and a half with little-to-no movement in the Nicaraguan court system.

 

Jason and I, along with our younger sister, Jaime, grew up in Tacoma, Washington.  Jason moved to Nicaragua to serve in the Peace Corps in 2002 after graduating from the University of Washington.  He decided to stay after his service and was working as a real estate broker for the local RE/MAX franchise in San Juan del Sur.

 

On November 11, 2010, Nicaraguan national police stormed Jason’s beachfront office wearing masks and carrying AK rifles.  They threw Jason in the back of a van with ten others and took the computers, phones, and files from the office.  At the same time, the police raided his home where our 65-year-old mother had been visiting from the US and was staying with Jason’s three-year-old son.  The police held my mother and nephew at gunpoint for six hours and refused to tell them what they were looking for.

 

After being held for three days without a phone call to his family or an attorney, Jason, along with ten Nicaraguans, was finally charged with international drug trafficking, money laundering, and organized crime.  But there was no evidence of any crime at all.  Indeed, the police and the prosecution admitted at trial that there were no drugs and no illegal transfers of money.  Instead, the prosecution argued that Jason, a real estate broker, had large sums of money going into and out of his corporate account, and those large sums must be evidence of crime.

 

It took 22 months and an international campaign involving thousands of supporters to finally bring Jason home.  As a civil lawyer trained in commercial litigation, I hit a steep learning curve as part of Jason’s defense team.  Through the 22 month crash course in international wrongful convictions, I quickly learned that there are many unwritten rules to practicing in this area.  Here are just a few:

 

  • Recognize that the courtroom may not be the real battleground.

 

The case against Jason lacked any merit at all; yet, he continued to languish in a maximum security prison without access to proper food, water, or medical care.[1]  During the first week of Jason’s imprisonment, he was moved from prison to prison as the police attempted to hide him from his attorney and family.  Jason spent three days at El Chipote, the infamous underground torture facility used during the Somoza regime.  Jason was thrown into a dark cell with only his boxer shorts and forced to live amongst the cockroaches, ants, and screaming from terrified prisoners in other cells.[2]  Jason was then transferred to La Modelo, the maximum security prison just outside Managua where he spent the remainder of his wrongful detention.  He shared a 12’ x 15’ cell with 8-12 other men and slept on concrete for much of the time.  The daily fight for food and water caused Jason to lose over 35 pounds and suffer from digestive disorders and physical effects of malnutrition.  Jason’s gums began to bleed; his eyes became sunken in; and his skin was covered in rashes and bites from ants, ticks, and mosquitoes.

 

We were fighting the clock, terrified that Jason would die in prison before we could get him out.  But it took us nine months to even get the case to trial.  Despite a three month time limit to bring a criminal case to trial under Nicaraguan law, the prosecution repeatedly requested delays without citing a reason, and the judge granted them with no notice to the defense.  Our entire defense team would appear for the first day of trial only to learn that the trial had been delayed.

 

Throughout the nine months, the defense asked for, and was denied, access to the evidence that had been seized from Jason’s office.  At trial—closed to family and media—the prosecution argued that the documents from the office proved money laundering, but refused to put any of the allegedly inculpatory evidence into the record.  Not a single bank record was offered to prove money laundering and, instead, the prosecution simply offered its “financial expert” (a police officer) to testify that the RE/MAX account held large sums of money.  While the prosecution was permitted to try its case by relying on hearsay from police officers citing anonymous informants, the defense was denied the right to fully examine those officers or put on its own key witnesses to rebut the testimony.  All the while, Jason was refused confidential communications with his lawyers, making preparation for trial a logistical nightmare.

 

Despite the roadblocks facing us, the evidence during the trial came out in Jason’s favor.  The police admitted that they never found a single gram of drugs—not just on Jason, but on any of the eleven defendants in the case.  The police also admitted that no money had ever changed hands between Jason and any of the other defendants.  The prosecution put 295 titles to properties into evidence that were seized from Jason’s office and claimed the titles were evidence of money laundering.  Six of the titles, in fact, belonged to the Nicaraguan military.  The police were forced to admit at trial that Jason did not own any of the properties, and the police had never even questioned the buyers or sellers of the properties.

 

We thought Jason would be coming home after the trial.  Instead, the judge took a 15 minute recess after closing arguments and then convicted all 11 defendants.  He sentenced Jason to 22 years in prison.

 

It was clear that we never had a shot of fighting this case on the merits.  We had to find the pressure points outside the courtroom and win the war elsewhere.

 

  • Understand that ratification of a treaty doesn’t necessarily mean acceptance.

 

Nicaragua ratified the International Covenant on Civil and Political Rights (“ICCPR”) on March 12, 1980.[3]  It was one of 48 countries that voted in favor of the Universal Declaration of Human Rights,[4] and was a signatory to the American Convention on Human Rights (“ACHR”).[5]  Both the ICCPR and the ACHR provide for the right to trial before a competent, independent, and impartial tribunal established by law.[6]

Nicaragua’s signature on these fundamental treaties respecting human rights should have been our saving grace.  Indeed, Nicaragua’s own law requires that, to be a district court judge under Nicaraguan law, one must (1) be an attorney, (2) have practiced for at least three years, and (3) have served as a local judge for at least two years.[7]

Yet, we discovered just one month before Jason’s trial that the man who was appointed to preside over the trial was neither a judge nor a lawyer.[8]  Rather, 27-year-old Kriguer Alberto Artola Narvaez was not a licensed attorney, never practiced law, never served as a local judge, and had never even seen a trial.

The story broke in the Nicaraguan news before trial and caused an uproar.  Still, Artola Narvaez was permitted to preside over the trial and issue the conviction and 22-year sentence that would ultimately end up costing my family everything we had worked for to fight against.  Artola Narvaez fled the country shortly after we filed a petition in the United Nations pleading for intervention.[9]

The unfairness of it all was not lost on any of us.  But we were able to use the injustice to energize an international outcry against the Nicaraguan system.  The system had left us with no redress except the one of public opinion and that was what, in the end, was the most powerful.

 

  • Look for leverage in unconventional places.

 

The crimes with which Jason was charged are traditionally governed by domestic law, but domestic law had failed us.  The judicial process in Nicaragua was being selectively enforced and, in Jason’s case, its laws were arbitrarily used as leverage against the public.  Without due process, a country has the potential to become, effectively, a lawless society.

 

So the question became:  where do you turn when you cannot rely on a process guaranteed under domestic criminal law?

 

The Organization of American States (“OAS”), established to enforce and interpret the ACHR, is one option.  The OAS accepts and rules on cases of human rights violations brought by individuals or groups.  But the path to a binding decision is long and slow.  The court has a backlog that could take years to resolve.  With Jason slowly dying in prison, we didn’t have time to wait.

 

We had to look for pressure points elsewhere.  One place was in the media.  The media proved to be an invaluable force, but we had to do our part.  We had to deliver content that was engaging, well-packaged, and, most of all, reliable.

 

For example, because we could not get to a decision in the OAS in time, we looked to the United Nations Working Group on Arbitrary Detention (“WGAD”).  The WGAD investigates cases by looking at only the procedural violations.[10]  The WGAD, unlike the OAS, does not address the merits of the case (i.e., the question of innocence or guilt) and operates under a vastly different procedure as part of the United Nations.[11]  The WGAD’s decisions are not binding; they are merely recommendations to a state.  The timeline for a recommendation, however, is just three to six months.

 

We filed a petition with the WGAD on January 18, 2012, and it was the first time the Government of Nicaragua had been called before the WGAD.  The filing made headlines in Nicaragua.[12]

 

The WGAD’s decision was released in May 2012, and the Group agreed that “there were major irregularities” in Jason’s trial, resulting in an arbitrary detention.[13]  The WGAD recommended the Government of Nicaragua “order the immediate release of Mr. Puracal.”  Again, the media came through, splashing the papers with the headline:  “United Nations Calls on Nicaragua to Immediately Release Wrongly Imprisoned U.S. Citizen Jason Puracal.”  Jason was released four months later.

 

*          *          *

 

We will likely never know what ultimately forced Jason’s release and return home in September of 2012.  I am, however, certain that it took a global effort from thousands of people around the world to save his life.  Many others are not so lucky.

 

Although Jason was deported from Nicaragua, the prosecution has appealed the case to the Nicaraguan Supreme Court, forcing us to turn to the OAS for help.  The petition to the OAS will seek legal reform to help the many left in Nicaragua who have not been able to navigate the labyrinth.  In the meantime, there is much work to be done around the world.  To all of those who have led, joined, or supported the fight, thank you.

 

[1] Physical abuse and the denial of food, water, and proper medical care constitute serious violations of the standard for the detention of prisoners.  Standard Minimum Rules for the Treatment of Prisoners, para. 20(1) (“Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.”); para. 20(2) (“Drinking water shall be available to every prisoner whenever he needs it.”); para. 22(2) (“Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals.  Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.”).

[2] The unsanitary and infested conditions in which Jason was forced to live were further violations of international standards.  Standard Minimum Rules for the Treatment of Prisoners, para. 10 (“All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.”), para. 12 (“The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.”), para. 14 (“All parts of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.”), para. 15 (“Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.”).

[4] Yearbook of the United Nations 1948-1949 at p. 535.

[5] See Signatories and Ratifications available at http://www.cidh.oas.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm.

[6] Article 14 of the ICCPR provides that “[i]n the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”  Article 8 of the ACHR confirms the same right:  “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him[.]”

[7] Article 137 of the Judicial Power Organization Act.

[8] See Lésber Quintero, Abnormal Appointment of Judge in Rivas, El Nuevo Diario, July 4, 2011, available at:  http://www.elnuevodiario.com.ni/nacionales/106766-raro-nombramiento-de-juez-rivas; Ramón Villarreal B., Lucía Vargas, and  Eddy López, Deputy Judge Unregistered Attorney, La Prensa, July 4, 2011, available at: http://www.laprensa.com.ni/2011/07/04/politica/65636; Ramón H. Potosme, Ramón Villarreal, and Lucía Vargas, Rivas Judge is Not a Lawyer by Error, La Prensa, July 5, 2011, available at: http://www.laprensa.com.ni/2011/07/05/nacionales/65706.

[9] See Lésber Quintero, Controversial Judge Leaves Rivas, El Nuevo Diario, February 2, 2012, available at:  http://www.elnuevodiario.com.ni/nacionales/240484.

[10] The WGAD was established by resolution 1991/42 of the former Commission on Human Rights.  Resolutions 1997/50, 2000/36, and 2003/31 were adopted by the UN Commission on Human Rights to extend the mandate of the WGAD.  Resolutions 6/4 and 15/18, further extending the mandate of the Working Group, were adopted by the Human Rights Council, which has “assume[d] . . . all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights . . . .”  G.A. Res. 60/251, para. 6 (Mar. 15, 2006).  See also http://www.ohchr.org/EN/Issues/Detention/Pages/WGADIndex.aspx.

[11] See, e.g., Revised Methods of Work of the Working Group, available at:  http://www.ohchr.org/EN/Issues/Detention/Pages/Complaints.aspx.

[12] See, e.g., Elizabeth Romero, Denounce the Country by “Arbitrary Detention,” La Prensa, January 24, 2012, available at:  http://www.laprensa.com.ni/2012/01/24/ambito/88174.

[13] Opinions adopted by the Working Group on Arbitrary Detention at its sixty-third session, 30 April–4 May 2012 – No. 10/2012 (Nicaragua), available at:  http://ap.ohchr.org/documents/dpage_e.aspx?m=117.