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Comparative Analysis on the Trial of Genocide in Bangladesh and Cambodia: Through a Legal Lens – By Farzana Rifat Siddique

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Abstract

Bangladesh has gone through the worst kind of genocidal atrocities, war crimes, crimes against humanity during its nine months long glorious liberation war in 1971.Cambodia also holds a history of international crimes and violation of human rights which took place between the years 1975 and 1979. In Bangladesh, the International Crimes Tribunal (ICT-BD) was established on 25th March 2010 as per the International Crimes Tribunal Act, 1973 with the purpose to prosecute the Bangladeshi nationals who were involved in the genocidal and other heinous atrocities in 1971 during the liberation war. On the other hand, the Extraordinary Chambers in the Courts of Cambodia (ECCC) was constituted in 2004 with a view to prosecute the perpetrators for their involvement in the mass atrocities of Cambodia under the Law on the Establishment of the Extraordinary Chambers. These two tribunals were established on the basis of a similar purpose but two separate and distinct histories. This study will briefly discuss the trial of Genocide in Bangladesh and Cambodia by specific comparisons and analysis from a legal perspective. It endeavors to analyze the trial procedures and distinct features of the tribunals of Bangladesh and Cambodia regarding the prosecution and punishment of genocide. It explores the grounds on which the two tribunals have similar mechanisms and where they distinguish from each other. In doing so, some major aspects and case examples of the tribunals are highlighted in the discussion. This study also tends to outline the scope of victims’ rights and overall fairness as well as the outcome of the trial processes.

Introduction

This paper concentrates on comparative analysis of the trial procedures of genocide in Bangladesh and Cambodia. Mostly, the legal provisions are explained here to have a clear concept about the topic. It focuses on only the trial procedures of these tribunals and explores their different aspects regarding their similarities or dissimilarities. To compare between the proceedings, the formulation process of these tribunals and the definition of genocide as identified in the tribunals have been highlighted here. This study also explores the salient features of the tribunals and also analyses the scope of the victims’ rights. It finally ends with some recommendations identifying some relevant legal and practical lacunas.

Research Objective

The main purpose of this paper is to critically analyze and compare the major similarities and dissimilarities between the trial process of genocide, as these are followed in the International Crimes Tribunal of Bangladesh (ICT-BD) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). It does not, however, elaborate or discuss about the historical evolutions behind establishment of these Tribunals.

Background

As the trial procedures of genocide in Bangladesh and Cambodia are the central point of this discussion, hence, first of all, it is essential to have the very basic concepts about the respective tribunals of the countries. In Bangladesh, the International Crimes Tribunal is the authoritative body for the trial of genocide. This tribunal was constituted for the purposes of detention, prosecution and punishment of the Bangladeshi nationals who were involved in the genocidal atrocities of 1971, committed during the liberation war of Bangladesh. In Bangladesh, the International Crimes Tribunal was established on 25th March 2010 according to the provisions of the International Crimes Tribunal Act of 1973.[1]

In Cambodia, the tribunal for such trial was set up under the Law on the Establishment of the Extraordinary Chambers 2004, namely the Extraordinary Chambers in the Courts of Cambodia. It is also known as the Cambodia Tribunal or the Khmer Rouge Tribunal. Although it is a national court of Cambodia, it was established as a part of an agreement between the United Nations and the Royal Government of Cambodia,[2]to bring to trial the senior leaders of Democratic Kampuchea and those who were most responsible for the crimes committed during the period from 17 April 1975 to 6 January 1979.To compare the trial procedures of genocide in Bangladesh and Cambodia, some features of the tribunals and trial procedures of these countries will be broadly discussed in the following part.

Formation of the Tribunals

In 1997, the Co-Prime Ministers of Cambodia sought assistance from the United Nations (UN) in order to set up a tribunal to try the Khmer Rouge leaders involved in Cambodia’s mass atrocities.[3] This happened after a lapse of 18 years, which was caused due to the fall of the Khmer Rouge regime and four years after the 1993 elections, which indicates Cambodia’s transitional period towards a democratic government. The process of negotiations to form an agreement was quite lengthy. In March 2003, the international community and the Cambodian Government agreed a way to try those who are alleged to have committed the most grievous crimes during the Khmer Rouge period and thus, the Extraordinary Chambers in the Courts of Cambodia (ECCC) was established.[4] So it can be easily understood here that the ECCC is a hybrid court in nature as it is established after the joint agreement between Cambodia, the country itself and the United Nations.

The International Crimes Tribunal of Bangladesh (ICT-BD), on the other hand, was established into two parts, the ICT-BD 1 and ICT-BD 2. The ICT-BD 1 was established on 25 March 2010 to run the major purpose of the tribunal that is to prosecute the war criminals of 1971.[5] On 22 March 2012, the Government by official gazette notification established the ICT-BD 2.[6] Thus, the International Crimes Tribunal Bangladesh (ICT-BD) is a completely domestic tribunal and its two parts, ICT-BD 1 and ICT-BD 2 hold the same jurisdiction as mentioned in Section 3 of the ICT-BD Act of 1973. Each of these tribunals has their own separate rules of procedures. However, since 15 September 2015, only Tribunal-l has been functioning on being reconstituted and Tribunal-2 remains non-functioning.[7]

After viewing the formation of each tribunal, it can be opined that the ECCC tribunal of Cambodia is a hybrid tribunal, whereas, the, ICT-BD is clearly a separate domestic tribunal of Bangladesh. Nature of the tribunals can easily be distinguished from here.

The Crime of Genocide as defined by the Tribunals

In both of the tribunals, the definition of genocide is signified. For instance, the Extraordinary Chambers in the Courts of Cambodia (ECCC) is governed under the Law on the Establishment of the Extraordinary Chambers which defines ‘genocide’ in its Article 4. The Extraordinary Chambers (ECCC) is empowered as per this provision to bring to all suspects to trial procedures. The persons who were involved in the crimes of genocide according to the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, and which were committed during the period from 17 April 1975 to 6 January 1979 in Cambodia were under jurisdiction of ECCC to face the trials.

The crime of genocide is also defined in the same provision[8] and five elements of genocidal acts can be enumerated from the same. To quote from the provision, genocide means any acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as:

  • killing members of the group; or
  • causing serious bodily or mental harm to members of the group; or
  • deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; or
  • imposing measures intended to prevent births within the group; or
  • forcibly transferring children from one group to another group.

In addition, the attempts, conspiracy to commit genocide and participation in acts of genocide will be punishable under this Article.

Conversely, the International Crimes Tribunal Act, 1973 which is applicable in Bangladesh defines genocide in its Section 2(c). If we break down the definition of genocide as provided in this provision, only the word ‘political group’ is an exception comparing to the definition of the genocide as given in the Law of Cambodia.

The elements of genocide as stated in the Law on the Establishment of the Extraordinary Chambers have similar notions to that of the ICT-BD Act 1973 of Bangladesh. But the inclusion of political groups within the definition of genocide in International Crimes Tribunal Bangladesh, in addition to the other four groups as expressed in the law of ECCC. Although ‘political groups’ has never been identified as one of the victim groups previously in the Nuremberg Charter, or the ICTY and ICTR, it is included in ICT-BD based on some historical facts of 1971 liberation war of Bangladesh. In 1970, when Awami League (Political representatives of East Pakistan) won the parliamentary election, the West Pakistan authorities perceived Awami League as a powerful threat against them. Later in 1971, the West Pakistanis started heinous tortures and mass killings over the innocent Bengali people to destroy their political power and identity. A very strong motive behind committing genocide is to destroy a group which is perceived as a threat to the ruling power. Hence, destruction towards Awami League, a political group demanded justice after the independence of Bangladesh. For this reason political groups has been included here as one of the victim groups.

Another difference between these two definitions is that the attempts, conspiracy and participation in the acts of Genocide are stated to be punishable under the Act of Cambodia, but in the ICT-BD, these elements are not considered as punishable.

Number of Judgments

From the beginning of the trial process of the cases before the Tribunal up to now, a number of 21 and 11 cases have been finally disposed of with judgments by the International Crimes Tribunal-1, Bangladesh[9] and International Crimes Tribunal-2, Bangladesh[10], respectively. Hence, a total of 32 judgments are declared by this tribunal. It can be mentioned that the delivery of these judgments initiated in the year 2013 and some judgments are yet to come from the pending cases.

In contrast, 4 cases were brought before the Tribunal of Cambodia, the Extraordinary Chambers in the Courts of Cambodia of which 2 cases have been disposed of with judgments, and the rest are on trial process.[11]

Ceiling of Punishment

In Bangladesh, the accused persons convicted in International Crimes Tribunal Bangladesh can be awarded with the highest sentence of death penalty, life imprisonment or other punishments. Section 20 (2) of the International Crimes Tribunal Act, Bangladesh 1973 reads as follows-

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.

Due to the gravity of crimes, some perpetrators of Bangladesh liberation war 1971 were awarded with the capital punishment or life imprisonment. Motiur Rahman Nizami, Abdul Quader Molla,  Salauddin Quader Chowdhury, Delowar Hossain Sayeedi, Ali Ahsan Mohammad Mujahid, Mohammad Kamaruzzaman, ATM Azharul Islam,  Mir Quasem Ali were some of the convicted persons. Except the capital punishment, some other forms were also awarded due to the gravity of crimes and other reasons. For instance, 90 years imprisonment was awarded to Ghulam Azam by the International Crimes Tribunal Bangladesh, considering his old age. Also, conditional bail was granted to Md. Abdul Alim and to Syed Md. Qaiser. Hence, it can be said that both life imprisonments and death penalties have been sentenced to different accused persons depending upon their gravity of crime in the International Crimes Tribunal Bangladesh.

In Cambodia, the governing legal provisions on this issue are enshrined in the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the period of democratic Kampuchea. It says in its Chapter XI about the penalties that can be awarded by the ECCC Tribunal. As per Article 38 of this statute, all penalties are limited to imprisonment. Article 39 states that, sentence to a prison term from five years to life imprisonment can be awarded to the persons convicted under some specific crimes as specified in articles 3,4,5, 6, 7 and 8 of the statue. In addition to imprisonment, the ECCC trail court may order the confiscation of personal property, money, and real property acquired unlawfully or by criminal conduct and such property will be returned to the Government of Cambodia.

It can clearly be understood that in the International Crimes Tribunal Bangladesh, death penalty is the highest ceiling of punishment that can be awarded to the convicted persons whereas, in the ECCC tribunal, all kinds of penalties are limited to imprisonment only, it cannot give death sentence to the convicted persons. This difference indicates the distinct nature of the tribunals and their own individual historical background.

Victim’s Rights

Extraordinary Chambers in the Courts of Cambodia (ECCC) provides for a system of reparation as per the international legal principles. The civil party victims of the trial procedures in ECCC are legally entitled to seek collective and moral reparation, and ECCC is empowered as per the Constitution of Cambodia, Law on the Establishment of the Extraordinary Chambers 2004 and its Internal Rules to provide for measures to maintain the procedural cost at the expenses of the accused and/ or funded by other means. Victim’s reparation as provided in the trial of Kaing Guek Eav alias Duch was an exclusive example observed in the ECCC and its influence was later addressed in the trial of Nuon Chea and Khieu Samphan (together with Ieng Sary and Ieng Thirith).[12]

The UN Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (“Joinet / Orentlicher Principles”) provides-

“any human rights violation gives rise to a right to reparation on the part of the victim or his or her beneficiaries, implying a duty on the part of the State to make reparation and the possibility for the victim to seek redress from the perpetrator.”[13]

Among different types of reparation, compensation is considered to be the most effective remedy in respect of many international crimes. Granting compensation in the cases of international crimes like genocide or crimes against humanity is significantly related with ensuring complete justice, as restoring the victims to the situation before the gross violation is not possible, and compensation remains as the only central right of the victims.[14]

In Cambodia, the victim’s rights are provided as per the ‘Internal Rules’ of ECCC. Rule 23(1) of the same states that civil party actions are required to allow the victims so that they can participate in the proceedings and to them to seek moral and collective reparations.[15]

However, in Bangladesh, there is no such provision for the victim’s compensation or reparation in its International Crimes Tribunal Act of 1973. In the cases of The Chief Prosecutor vs. Syed Md. Qaisar and The Chief Prosecutor vs. A.T.M Azharul Islam, the prosecution asked for victim’s compensation but the tribunal could not award it due to the lacunas in its legal framework.

Concluding Remarks

Under the purview of international law, the UN Declaration of Basic Principles for Victims of Crime and Abuse of Power (1985) initiated the concept of an individual right to compensation.[16]  The right to reparation of victims of grave breaches of international law is also the main object of the UN Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law (also known as the “Van Boven / Bassiouni Principles”). According to these guidelines, victims are entitled to sufficient, operative and immediate reparations for the harms suffered, and these reparations must be proportional comparing to the gravity of the violence and injuries they might have suffered.[17] Thus, the victims’ rights under these principles may cover restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition respectively in its Principles 19, 20, 21, 22 and 23.

In conclusion, it can be said that the ICT-BD and the ECCC both have a similar aims for trial and prosecution. It can also be opined that, both the tribunals have such distinct features that the other tribunals of the world can follow as per their necessities and legal obligations. However, International Crimes Tribunal Bangladesh is still not legally bound to award compensation or any other kind of reparation to the victims. Victims’ rights should be addressed in the provisions of the ICT-BD Act to legally empower the tribunal so that victims can be awarded with compensation or reparation in particular cases as may be necessary.

References

  1. Bonacker T., Wolfgang Form & Dominik Pfeiffer(2011), ‘Transitional Justice and Victim Participation in Cambodia: A World Polity Perspective’, Global Society, 25:1, 113-134.
  2. Gray, T., Justice and the Khmer Rouge: Concepts of a Just Response to the Crimes of the Democratic Kampuchean Regime in Buddhism and The Extraordinary Chambers in the Courts of Cambodia at the Time of the Khmer Rouge Tribunal, Working Paper No 36, Centre for East and South-East Asian Studies, Lund University, Sweden (2012)
  3. Kirsten A., Transitional justice in Cambodia: the coincidence of power and principle. In: Jeffery, Renee, (ed.) Transitional justice in the Asia-Pacific. Cambridge University Press, 2014, Cambridge, UK
  4. Official Website of International Crimes Tribunal-1, Bangladesh <http://www.ict-bd.org/ict1/indexdetails.php>
  5. Official Website of International Crimes Tribunal-2, Bangladesh<https://www.ict-bd.org/ict2/>
  6. Official Website of the Extraordinary Chambers in the Courts of Cambodia, <https://www.eccc.gov.kh/en>
  7. REDRESS,‘No Justice Without Reparation : Recommendations for Reparation for Survivors of the 1994 Genocide : Discussion Paper’ https://www.refworld.org/docid/50641a392.html
  8. The Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, <https://www.eccc.gov.kh/sites/default/files/legal-documents/Agreement_between_UN_and_RGC.pdf>
  9. The International Crimes Tribunal Act, Bangladesh(1973)
  10. The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (2004)
  11. Totten, S. (Ed.), Parsons, W. (Ed.), Parsons, W. (Ed.)., Century of Genocide, New York: Routledge (2005) <https://www.niod.nl/sites/niod.nl/files/Cambodian%20genocide.pdf>
  12. UN Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian available at: <http://www2.ohchr.org/english/law/remedy.htm>
  13. UN Updated Set of principles for the Protection and Promotion of Human Rights through Action to Combat Impunity available at: <http://www.derechos.org/nizkor/impu/principles.html>
  14. UN Declaration of Basic Principles for Victims of Crime and Abuse of Power, adopted by the General Assembly in resolution 40/34, 29 November 1985, Principles 4 and 8-13 <http://www2.ohchr.org/english/law/victims.htm>
  15. Victim’s Rights- Before the Extraordinary Chambers in the Courts of Cambodia (ECCC): A Mixed Record for Civil Parties, FIDH
  16. War crimes tribunal disposes of 31 cases in eight years, The New Nation, July 6, 2018 <http://thedailynewnation.com/news/169185/war-crimes-tribunal-disposes-of-31-cases-in-eight-years.html>

Footnote

[1] International Crimes Tribunal-1, Bangladesh https://www.ict-bd.org/ict1/; last accessed on March 27, 2019

[2] Article 1 of the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, <https://www.eccc.gov.kh/sites/default/files/legal-documents/Agreement_between_UN_and_RGC.pdf> last accessed on March 27, 2019

[3] Totten, S. (Ed.), Parsons, W. (Ed.), Parsons, W. (Ed.). , Century of Genocide, New York: Routledge (2005) https://www.niod.nl/sites/niod.nl/files/Cambodian%20genocide.pdf last accessed on March 29, 2019

[4] A. Kirsten, Transitional justice in Cambodia: the coincidence of power and principle. In: Jeffery, Renee, (ed.) Transitional justice in the Asia-Pacific. Cambridge University Press, 2014, Cambridge, UK, pp. 125-156.

[5] Preamble of the ICT-BD Act 1973 reads: An Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law.

[6] Official Website of International Crimes Tribunal-2, https://www.ict-bd.org/ict2/ last accessed on March 27, 2019

[7]http://www.ict-bd.org/ict1/indexdetails.php,  last accessed on March 27, 2019

[8] Article 4 of the Law on the Extraordinary Chambers in the Courts of Cambodia (ECCC)

[9]  Official Website of International Crimes Tribunal-1, Bangladesh, https://www.ict-bd.org/ict1/judgments.php, last accessed on March 28, 2019

[10]  Official Website of International Crimes Tribunal-2, Bangladesh, https://www.ict-bd.org/ict2/judgments.php   last accessed on March 28, 2019

[11]https://www.eccc.gov.kh/en/node/39457, last accessed on March 29, 2019

[12] Victim’s Rights- Before the Extraordinary Chambers in the Courts of Cambodia (ECCC): A Mixed Record for Civil Parties, FIDH

[13] UN Updated Set of principles for the Protection and Promotion of Human Rights through Action to Combat Impunity. (“Joinet / Orentlicher Principles”), 8 February 2005, see in particular Principle 31, “Principle 31. Rights and duties arising out of the obligation to make reparation” http://www.derechos.org/nizkor/impu/principles.html last accessed on March 30, 2019

[14] REDRESS, ‘No Justice Without Reparation : Recommendations for Reparation for Survivors of the 1994 Genocide : Discussion Paper’ https://www.refworld.org/docid/50641a392.html,last accessed on 25 June 2019

[15] Thorsten Bonacker, Wolfgang Form & Dominik Pfeiffer (2011), ‘Transitional Justice and Victim Participation in Cambodia: A World Polity Perspective’, Global Society, 25:1, 113-134, doi: 10.1080/13600826.2010.522980 last accessed on March 29, 2019

[16] UN Declaration of Basic Principles for Victims of Crime and Abuse of Power, adopted by the General Assembly in resolution 40/34, 29 November 1985, Principles 4 and 8-13 http://www2.ohchr.org/english/law/victims.htm, last accessed March 28, 2019

[17] UN Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law (“Van Boven / Bassiouni Principles”), adopted by the UN General Assembly Resolution 60/147, 16 December 2005, Principle 11(b), and Principles 14-23, http://www2.ohchr.org/english/law/remedy.htm, last accessed on March 30, 2019

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