The Rohingya Revisited

Written by:  Regina Paulose

Nearly a year ago, I wrote an article outlining reasons why the ICC should take action in Myanmar (also known as Burma) in order to stop continued religious and ethnic violence towards the Rohingya. During 2013, not surprisingly, the anti-Muslim violence in Myanmar has continued.[1] In fact, violence has spread beyond targeting the Rohingya and against the larger Muslim population.[2] Although the majority displaced from the violence are still the Rohingya. Continue reading

WHICH CRIME? WHICH PUNISHMENT?

On 16th July 2013, Ali Ahsan Mojaheed was convicted of genocide by the Bangladeshi War Crimes Tribunal. Mojaheed was charged with genocidal acts involving multiple crimes including the  kidnapping and murder of certain individuals during the 1971 independence war against Pakistan. He was thereafter sentenced to death. This conviction added to the growing number of convicted felons for genocide, variously described as ‘the crime of crimes’. One could say that Mojaheed is, in many ways, unlucky.

Slightly less than a month before that-on 20th June, 2013-Stanislas Mbanenande, an ethnic Hutu from Rwanda, was also convicted of genocide. However the sentencing tribunal was different-a Swedish court. In convicting and holding him responsible for several massacres in Kibuye region, the court stated thus: “It has been proved that the purpose of the acts of which the defendant has now been convicted was to wholly or partly destroy the Tutsi ethnic group. The acts have therefore been assessed as genocide”[1]. The court then proceeded to sentence him to a life in prison. Mbanenande was, in some ways, unlucky.

Gaspard Kanyarukiga, who had earlier been convicted of genocide and extermination as a crime against humanity over the same Rwanda genocide, was only sentenced 30 years by the International Criminal Tribunal for Rwanda (ICTR). A slap in the wrist.

However, Mbanenande is lucky in many ways. He still has his life about him. Secondly, although he will likely spend a long time in prison, he will live in relative comfort-compared to the sordid conditions in the jails in Bangladesh for those unlucky enough to be convicted by the War Crimes Tribunal. Thirdly, it is likely that his sentence could be commuted for good behavior.  In fact he would definitely thank his gods if he were to read about the fate of Ali Ahsan Mojaheed Mr Mbanenande surely is lucky.

These disparate sentences for the same offence reveal the “absence of an articulated ICL philosophy of or justification for punishment and the dearth of sentencing principles”[2]. In reality, it is difficult to discern what the purpose of the sentences is, especially at the international arena. Whereas, admittedly, there has been an attempt to ensure internal consistency in the sentences within the international bodies, there is still a huge disparity between the sentences imposed by different tribunals. Again, there is a failure to take into account the maximum sentences to be imposed by domestic jurisdictions on the similar offences. A man who rapes a 12 year old girl in Kenya, for example, will be sentenced to a mandatory life sentence. However, the Kenyans being tried at the ICC for mass rapes-among other offences-will, if convicted, likely not be sentenced for more than 40 years. Charles Taylor’s sentence by the Special Court for Sierra Leone for “aiding and abetting, as well as planning, some of the most heinous and brutal crimes recorded in human history” resulted in a prison sentence of 50 years, notwithstanding the prominent role he played as a former head of state. Less for more!

The paradoxical argument one could make from such a scenario would be that if one is so inclined to commit certain crimes then s/he should do it in such a grave manner that it would attract the attention of the international community. It is better, it seems, to commit mass murder and to be tried by the International Criminal Court, than to kill an individual and be liable for capital punishment within the domestic jurisdictions.

In addition, it is important for international criminal law to develop its own theories for sentencing of offenders. If the sentences imposed are a reflection of the determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”[3] then we need to seek why this is not being realized. Why do we always seem to have a Libya or a Syria after every Cote d’Ivoire or Kenyan experience?  Isn’t this an indication of the failure of the sentences to act as a prohibition for future offences. If, on the other hand, it is a process of expressing our (the international community’s) indignation at the actions of the perpetrators then surely more indignation ought to be captured at the international level. An understanding of what the intention of the sentences is at the international level is the only way to remove the present absurd realities that encourage “forum shopping”.


[2] Robert D. Sloane, The Expressive Capacity Of International Punishment: The Limits Of The National Law Analogy And The Potential Of International Criminal Law, 43 STAN. J. INT’L L. 39 (2007)

[3] Preamble to the Rome Statute of the International Criminal Court

Smuggling of Migrants: A Search for New Land, New Home, New Life.

Written by Garima Tiwari
In this picture, victims of human smuggling are intercepted along the Southern border of the United States of America. Photo credit/Wordpress

In this picture, victims of human smuggling are intercepted along the Southern border of the United States of America. Photo credit/Wordpress

On May 16th, 2013 Ecuador smashed a ring that smuggled immigrants from India and Sri Lanka into the US through Ecuador. Among the six people were arrested including three Indian nationals and two members of Ecuador’s immigration police. They brought in nationals from India and Sri Lanka, and arranged refuge for them in various hotels. The smugglers charged USD 5000 per person and after entering Ecuador illegally, the migrants would be sent to Central America and from there to the United States.[i]   Continue reading

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.