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War crimes and international borders

After war, justice may come late or not at all: the decision to try defendants without them being present suggests the Bangladesh International Crimes Tribunal is not confident of gaining an extradition order. 

Toby M
22 July 2013

 On 15 July 2013, the International Crimes Tribunal in Bangladesh (‘Tribunal’) began the trial in absentia of Chowdhury Mueen-Uddin and Ashrafuzzaman Khan for war crimes allegedly committed during the 1971 liberation war. This trial may well be the litmus test for whether Bangladesh truly wants to end impunity; some may argue such an opportunity has long since passed.

The question of whether a British Court would order the return of Mr. Mueen-Uddin to Bangladesh to stand trial has already been subject to much debate in the British and Bangladeshi media. Any comment that I offer merely represents an opinion and the matters which I discuss will ultimately need to be decided by an independent and impartial tribunal of law, namely a District Judge sitting as an extradition judge at the City of Westminster Magistrates’ Court in London.    

Members of the Bangladeshi government have argued that Mr. Mueen-Uddin should be returned to Bangladesh and that whilst there is recognition of the obvious legal barriers, it is considered that a political solution must prevail.  I offer the counter argument that extradition is highly unlikely and that it is not a question of politics but one of law. Reflecting on these issues, I am of the opinion that the arguments in favour of extradition are based on two fundamental errors: firstly concerning the procedure and legal requirements relating to trials in absentia, and secondly in regards to the question of whether a diplomatic solution may supersede the legal hurdles to extradition.

Trials in absentia

It has been argued that the applicable law, namely the International Crimes (Tribunals) Act 1973 as amended (‘1973 Act’), permit trial in absentia.  That is only partly correct. According to Section 10A(1) of the 1973 Act, the Tribunal has the power to order trial in absentia where it “has reason to believe that the accused person has absconded or concealed himself so that he cannot be produced for trial…”

It is worth noting that no attempt to return Mr. Muuen-Uddin to Bangladesh was made prior to ordering his trial in absentia.  It would appear the Tribunal has simply declared Mr. Mueen-Uddin an ‘absconder’ on the basis of convenience as he resides outside of the jurisdiction.  Section 10A (1) appears to require that the Tribunal conduct an inquiry into the status of the accused before ordering a trial in absentia.  

Furthermore, it does not appear the Tribunal was presented with evidence that Mr. Mueen-Uddin absconded for the purpose of evading trial or concealed his whereabouts.  In fact, Mr. Mueen-Uddin acted candidly by bringing these matters to the attention of the British authorities first in 1975, when he arrived in the UK, then again in 1995 following a Channel 4 documentary. [1]  

Fugitive status

Without any evidence being heard, Mr. Mueen-Uddin has been termed a ‘fugitive’ or ‘absconder’, suggesting he made a conscious effort to flee to evade prosecution and conceal his whereabouts or identity.  Note that when Mr. Mueen-Uddin arrived in the UK in 1975 there were no criminal proceedings pending.  Since that time he has never been officially questioned under caution in relation to any formal or anticipated charges. 

In the extradition context, the definition of ‘fugitive’ has been debated in a number of leading extradition cases before the British Courts.[2]  The current applicable definition seeks to ascertain whether the person fled the jurisdiction for the purpose of evading trial and whether he was made sufficiently aware of the charges prior to fleeing. 

There can certainly be no suggestion that Mr. Mueen-Uddin fled to evade prosecution or at any stage attempted to conceal his identity. On the contrary, he has led a very public life and at no stage have the appropriate authorities sought to question him in relation to these matters or sought his extradition. Whilst he may now be aware of the proceedings and that he is wanted in Bangladesh there has been no official communication delivered to him in relation to these matters nor have the appropriate authorities ever sought to question him.

It is notable that the Tribunal’s decision not to seek the extradition of Mr. Mueen-Uddin and to try him in absentia not only fails to comply with the 1973 Act, it is also in stark contrast to the numerous statements issued by members of the Government of Bangladesh. 

Sanaul Huq, the Inspector-General of Bangladesh’s National Police Force and the coordinator of the investigation, stated in April 2013 to the Mail on Sunday that “As soon as charges are made – which I can guarantee will happen in days – we will request the British Government to hand him back to Bangladesh, and we will ask Interpol for his arrest. We will use all means, diplomatic and legal, to bring him back. If we fail, we will try him in absentia.” It is therefore regrettable that the Tribunal judges have taken the rather extraordinary step to not pursue extradition and conduct the trial in absentia.  As to the reasons for adopting this course of action, one may only speculate.  The Government of Bangladesh will be mindful of the fact that any extradition request will not be promptly dealt with, some requests take years, and that it would not be concluded during the present Government’s mandate.  There is also the risk that a British Court refusing extradition based on human rights concerns would add to the mountain of criticism that the Bangladeshi government and Tribunal have already faced.

The position of the British Government

A number of commentators have suggested that the consistent diplomatic support the UK has given Bangladesh in relation to the trials and the recent amendments to the legal framework provides sufficient grounds for ordering extradition.  It is unclear which statements of support they have in mind.  The British Delegation to the UN stated on 29 April 2013 during Bangladesh’s Universal Periodic Review at the Human Rights Council: “We call on the Government to ensure that the International Crimes Tribunal fully meets international legal standards…” and recommended that the Government of Bangladesh “Agree to and facilitate an early visit by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions…” This is not exactly a ringing endorsement by the British Government.

It is right to say that the British Government, among others, has applauded the Government of Bangladesh for initiating a process aimed at bringing an end to a culture of impunity, but that is by no means consistent diplomatic support. The British Government has been consistent in its calls for fair trials and a moratorium on the death penalty – suggesting Whitehall still has serious concerns.

As to whether diplomatic pressure can override the legal barriers to extradition, it is notable that although extradition is based partly on political considerations, any decision to order extradition is taken by the Courts rather than Government. The Extradition Court would have the benefit of hearing evidence from both sides as to the fairness of proceedings, the death penalty and any other bars raised.  The defence would be able to rely on a mountain of independent critical reports from the UN Special Procedures, international NGOs, and UK, EU and US policy makers. Those acting for the Government would have little authority to rely on other than members of the current Government and the International Crimes Strategy Forum. It would seem therefore that there is insufficient evidence for extradition but of course that will be a matter for the Courts.

Bilateral extradition treaty

It is readily accepted that under the current legal framework, Bangladesh would need to forego the death penalty if it wishes to stand any chance of succeeding in an extradition request.  This may prove to be unacceptable in Bangladesh due to both the nature of the allegations and the sovereign right of a nation to determine whether the death penalty should be applied or not. Although I oppose the death penalty in all forms irrespective of the gravity of the offence, it is quite right to suggest that this is within Bangladesh’s rights as a state.

It has been suggested that a bilateral extradition treaty could be negotiated to ensure that a political decision is reached. Bangladesh could negotiate an extradition treaty with the UK and considering the ties between the two nations this would certainly be advisable.  A comparable treaty has been negotiated between the UK and Jordan for the purpose of returning Abu Qatada. However, it is not a question of whether it is legally and politically possible to negotiate a treaty for a specific purpose, it is more a question of whether a bilateral treaty can override the existing protections under national and European human rights law.  The answer to that question must of course be no.   In the case of Abu Qatada the considerations were quite different; the overriding consideration was whether the Jordanian courts would use evidence obtained through torture.  It is also notable that Abu Qatada agreed voluntarily to return to Jordan to stand trial if a bilateral treaty was signed guaranteeing him a fair trial.  The British and European Courts had up to that point refused to uphold an order for extradition.  Accordingly, any such treaty still needs to comply with the protections under the existing legal framework.

One commentator on the extradition process, Mr. Shah Ali Farhad, declares thatGiven the universal sensitivity of crimes like genocide, war crimes and crimes against humanity, it is plausible to envisage such a special bilateral treaty being actually entered into by Bangladesh and UK sometime in the near future.” Mr. Farhad recommends that whatever process is selected it should be initiated without further delay, as the processes are “rather long and arduous”.

In the overall context of war crimes and extradition there has been a great deal of discussion as to whether the gravity of the crimes supersedes the national legal framework on extradition and deportation.  Mr. Farhad is certainly not alone in formulating such a viewpoint.  A number of Bangladeshi legal professionals and members of the Government have also  recently raised the same erroneous assertion, based on little more than optimism.  The Bangladesh Foreign Minister, Dr. Dipu Moni, stated in April 2013 to the Mail on Sunday that: “[extradition] may be difficult because of the death penalty, but every country has a duty to hand over somebody who is charged with genocide and crimes against humanity.” This raises an important point.  Is there an obligation under international law to return a person to face trial in circumstances where there is a risk of a flagrant denial of justice, torture or summary execution? 

International norms explicitly contemplate the criminal prosecution of international crimes and in certain situations States are under an obligation to extradite or prosecute offenders[3].  However, there is no legal compulsion to extradite a person to face trial where they are at risk of a flagrant denial of justice,[4] torture, [5] and summary execution.  On the contrary, there is plenty of authority to suggest that there is a prohibition in such circumstances.[6] In extradition proceedings, the European Convention on Human Rights renders it unlawful to order the extradition of a requested person to a country where he is foreseeably at real risk of ill-treatment in a manner which is sufficiently severe to engage Article 3 of the convention.

In 2009 in Brown & Others v. The Government of Rwanda & Secretary of State for the Home Department,[7] the High Court upheld an appeal submitted by the defendants against an order for their extradition.  In that case the Government of Rwanda and the United Kingdom had entered into a Memorandum of Understanding for each of the four defendants.  The High Court upheld the appeal on the basis that the defendants would not receive a fair trial in Rwanda.  In that case the defendants were each charged with genocide.  The proceedings lasted three years and have now restarted following the issuance of fresh warrants. The extradition hearing has been fixed for October 2013 and is likely to last for at least a year.

The Rwandan and Jordanian experiences demonstrate that whilst it is not uncommon for special arrangements to be made between two states for the purpose of seeking extradition where there is no existing extradition treaty, any procedure will nonetheless be subject to the same scrutiny of fair trial requirements and other bars to extradition under pre-existing legislation.

One of the critical arguments that commentators on the extradition process have thus far overlooked is that of the requirement of dual criminality, whereby the offences for which extradition is sought constituted criminal offences under the criminal laws in the jurisdiction of England and Wales and Bangladesh in 1971. Accordingly, the requirement of dual criminality must be satisfied for the offence to be considered an extradition offence - a matter for another article.  

Facing injustice

It is often argued that persons accused of war crimes and who are resident outside of the country must be returned to the country of origin to face justice. This holds as a general rule provided the country in question can satisfy the courts there will be a fair trial with no risk of the death penalty being applied. Regrettably, rather than seeking the extradition of the accused the Bangladeshi government has decided to try Mr Mueen-Uddin and Mr Khan in their absence in questionable circumstances.  The government needs to carefully decide whether it wishes to bring an end to a culture of impunity or to hold a series of politically charged show trials that resemble little more than the Stalinist Purges of the 1930s.

Recently, the Bangladesh High Commissioner to the United Kingdom, Mr. Mohamed Mijarul Quayes, stated in an interview to the Islam Channel that the trials before the Bangladesh Tribunal provide greater rights than any of the international tribunals.   The High Commissioner stated:  “I can confidently tell you that the Bangladesh Courts are not deficient.  In fact we have provisions that have a standard of a higher order than the international crimes tribunals.” It is unclear precisely what standards the High Commissioner is alluding to considering the trials have been plagued by controversy.  As an international lawyer and a keen observer of the international ad hoc tribunals and the International Criminal Court in The Hague, I do not recall many instances of witness abduction, intimidation of defence counsel, interrogations conducted in the absence of counsel, lack of interlocutory appeal or judicial review, findings of arbitrary detention, censoring of the media or the like. More recently, a special advisor to the Bangladeshi PM attempted to downplay the standard being applied and stated that it was not the “…gold standard of the Hague”. This is of course a more realistic view of the trials.  There is already an abundance of independent analysis of the trials and there is absolute unity in their criticism of the trial process – this is far from the gold standard.

Commentators have suggested the solution to the extradition dilemma is diplomacy. That may well be true – there is certainly a need for a political solution to the current stalemate. However, I for one do not believe that the UK is likely to turn back the clocks of justice solely for the purpose of returning one man to Bangladesh to face a sentence of death following a trial that is far from the gold standard.

The very simple solution is the establishment of an internationally supervised Tribunal composed of international judges, prosecutors and defence counsel working alongside Bangladeshi legal professionals in a mature and apolitical environment.  An international tribunal would have the political and emotional detachment to hold fair trials aimed at securing justice for the victims. An internationally supervised tribunal would also have the jurisdiction to put on trial any person who bears individual criminal responsibility irrespective of their political affiliation, nationality or geographical location. Nothing short of an international tribunal will suffice. 

Those that support the current flawed judicial process claim to be striving for justice.  That may or may not be their ultimate objective.  Playing devil’s advocate for a moment, let us assume that is their intention and they wish to see those responsible for crimes committed during the 1971 war of liberation brought to trial.  It is difficult how there could possibly be any opposition to an internationally supervised tribunal with the credibility to deliver justice dispassionately to the people of Bangladesh and serve as a benchmark for international justice for years to come.


[1] In 1995 following the broadcasting of a documentary by Channel 4 Dispatches entitled ‘War Crimes File’, the Crown Prosecution Service (CPS), Metropolitan Police and Foreign and Commonwealth Office Legal Department conducted a review of the allegations against Mr. Mueen-Uddin and determined that the matter would not be taken any further. It is for the CPS to answer why that decision was taken, but it is now a recognised principle of English law that a person suspected of having committed a crime under international law, such as war crimes, crimes against humanity and genocide, may be prosecuted in the Courts of England and Wales. See R v. Sawoniuk [2000] 2 Crim App R 220. Anthony Sawoniuk was the first (and to date the only) person convicted in the UK under the 1991 War Crimes Act. Born in what is now Belarus, Sawoniuk is a convicted Nazi collaborator who took part in the murder of Jews during WWII. Sawoniuk later moved to the UK where he became a British citizen. Sawoniuk lived freely in the UK until 1993 when his name was found on a KGB list of war criminals.  See also Section 51(1) of the International Criminal Court Act 2001 provides that “[it] is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime” and that as per s.51(2)(b) this applies to acts committed “outside the United Kingdom by a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction.”

 

[2] See for example Kakis v The Government of the Republic of Cyprus [1978] 1 WLR 779; Gomes v Government of Trinidad and Tobago & Goodyer v Government of Trinidad v Tobago [2009] 1 WLR 1938.  See also Sejdovic v Italy Application no. 56581/00, Grand Chamber judgment of 1 March 2006, R (on the application of Mucelli & Others) v. Secretary of State for the Home Department & Fair Trials International (Intervener) [2012] EWHC 95 (Admin) and Ilirian Zeqaj v. Government of Albania [2013] EWHC 261 (Admin)

[3] According to the rule of aut dedere aut judicare. See U.N. Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions-E.S.C. res. 1989/65, annex (endorsed by GA Res. 44/162 (1989)

[4] See R (Ullah) v Special Adjudicator [2004] 2 AC 323, 337, and EM (Lebanon) v SSHD [2008] 3 WLR 798

[5] See Soering v United Kingdom (1989) 11 EHRR 439

[6] See Government of the Republic of Serbia v. Ejup Ganic [2010] EW Misc 11 (MC)

[7] [2009] EWHC 770 (Admin) 

 

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