To refute an allegation
against Bangladesh ICT on the ground of not clearing definition of crime we
will take two paths. Firstly, we will explore what the laws provide. Secondly,
we will discuss the case of Simone Gbagbo’s indictment by ICC and explore how
looking beyond “military hierarchies” was not dictated by any prior ruling on
scope and definition of the crime; rather was set as an example through action.
One can find the
response of the Tribunal-1 to be adequate regarding the argument of the defense
lawyers urging the Tribunal to make ruling on definition of Crimes against
Humanity. The Tribunal informed, “In
regard to definition of crimes mentioned in the Act and elements thereof, we
are of the view that the definitions are quite clear and complete without any
ambiguity. The Act was drafted in an era when the crimes enumerated therein
were fairly known and understood to the world, and were very much part of
customary international law. Therefore, we see no reason why should we be
trying to find gaps which are not there or try to borrow definitions from
fairly recent international tribunals where the International Crimes Tribunal
of Bangladesh do not have any such obligation to do so. However, the Tribunal
may take into account jurisprudential developments from other jurisdictions
should it feel so required in the interest of justice. In regard to thresholds
of the crimes against humanity and its nexus to armed conflict and the
requirement of knowledge, as stated above, we are of the view that the crimes
under the Act are adequate in all aspects and therefore it is not necessary to
visit other recent notions developed by the statutes of various international
tribunals.”
At the same time, the
defense attempted to set a ruling on- “what conducts constituted crimes against
humanity in 1971?” based on the conditionality set by the Extraordinary Chamber
of the Courts of Cambodia. However, the context and contents are different in
every country and the laws need not be explicit in recognizing these aspects
(as the international legal norms are quite adequate). An example can be found
with regard to changing context and legal application of indictment with regard
to war crimes as charged against the wife
of the former president of Cote D'Ivoire. The
international Criminal Court (ICC) unsealed the indictment of Simone Gbagbo,
wife of the former president of Cote D'Ivoire, Laurent Gbagbo. Laurent Gbagbo was
already in detention in The Hague, awaiting trial at the ICC, charged with
orchestrating a campaign of violence in an effort to remain in power after
losing an election. The ICC indicted Simone Gbagbo for her involvement in that
post-election violence, asserting that she was personally responsible for
crimes against humanity, including murder, rape, and persecution.
Significantly, this was the first indictment of a woman by the ICC, perhaps
signaling a change in the role of gender in international justice. Yet, the
case's most important legacy may instead be the ICC's new willingness to look beyond formal governmental and military
hierarchies in identifying those most responsible for serious international
crimes. This aspect of looking beyond “military hierarchies” was not
included in the conditionality set by the Extraordinary Chamber of the Courts
of Cambodia.
Conclusion:
- The Tribunal has adequate flexibility to draw upon jurisprudential developments from other jurisdictions should it feels so required in the interest of justice.
- The Tribunal makes it clear that legal provisions are adequate. In this regard, it should be kept in mind that this legal tool had once already being applied in Bangladesh to identify crimes against humanity.
- Lastly, the changing context of war crimes does not always require definitional clarity as prerequisite, because the International Tribunals set new standards through adopting to the changing context. The International Tribunal on Crimes against Humanity in Bangladesh is also similar in this respect.
- The demand of defense lawyers of Jamat-e-Islami Bangladesh in ICT regarding following the Cambodia experience as a framework- is an example of undermining the process set on motion to buy time and add to confusion to popular conceptions. The ICT on the contrary can choose to be further innovative. In this regard prevailing international norms do not prescribe prior rulings to dictate actions rather to set examples through novel actions (as for example in case of Simone Gbagbo the incident of looking beyond “military hierarchies” was not dictated by any prior ruling on scope and definition of the crime).
