Prepared by Dr Aldo Zammit Borda and Dr Sajib Hosen
These Policy Recommendations focus on the challenges of long-delayed prosecutions, using the experience of the International Criminal Tribunal for Bangladesh (ICT-BD) as a case study.
The research underlying this document was made possible thanks to the support of a British Academy\Leverhulme Small Research Grant (Project Reference SRG19\190071).
This Policy Recommendations document focuses on the challenges of long-delayed prosecutions, using the experience of the International Criminal Tribunal for Bangladesh (ICT-BD) as a case study. This issue is still an “insufficiently discussed topic” in the criminal justice literature (Bergsmo and Wui Ling 2012b:iii).
The ICT-BD was established in 2010 to address crimes that were committed in 1971, almost forty years earlier. The ICT-BD, therefore, belongs to a category of post-conflict criminal tribunals that is engaged in conducting “long-delayed” prosecutions, that is, criminal prosecutions that begin decades after the conflict.
While the circumstances of long-delayed prosecutions in Bangladesh are highly specific,(Whiting 2009:347) it remains important to study the ICT-BD for what it can tell us about the challenges of long-delayed prosecutions more generally. Indeed, these types of prosecutions are likely to become more frequent in the future. The establishment of the ICT-BD in Bangladesh has opened the door for the possibility of accountability in other South Asian countries and more broadly. One day, the political leaders of such countries may find the political will to try perpetrators of mass atrocities even after a long delay (Bergsmo and Wui Ling 2012a:1).
A first set of challenges that arise from long-delayed prosecutions revolve around the principle of legality, which requires that the conduct in question must have been criminalized by a law that was previously applicable to the individual.(de Souza Dias 2018:65) The ICT-BD had to determine whether, in the 1970s, the definition of crimes against humanity required a nexus with an international armed conflict. Some authors have argued that the ICT-BD did not give this issue sufficient attention (Robertson 2015:96). It is thus recommended that the ICT-BD gives more attention to the issue of the definition of crimes at the time of the offenses to ensure compliance with the principle of legality.
Long-delayed prosecutions may also raise the prospect of time bars on prosecutions, even though the weight of international academic opinion takes the view that core international crimes are imprescriptible under general international law.(Hessbruegge 2011:350) Already in 1967, for instance, the United Nations General Assembly expressed the view that it was necessary and timely to affirm in international law “the principle that there is no period of limitation for war crimes and crimes against humanity […].” It is fair to say, therefore, that by 1971, international crimes had become imprescriptible and the mere passage of time, even of several decades, could not serve as a bar to their prosecution.
Long-delayed prosecutions also bring with them various opportunities and challenges for evidence. This will be organised according to: (1) crime scenes, (2) witnesses, (3) documents and (4) expert evidence (Cayley 2012:112).
Crime scenes include the places used to plan criminal acts or to conduct criminal activity, such as execution sites. In Bangladesh, several crime scenes, such as classrooms in a primary school which had been used as a torture chamber, had not been preserved. It is therefore very important to document crime sites as soon as possible after the commission of the crimes, as well as at regular intervals thereafter (Cayley 2012:114).
A long delay will also impact on the evidence provided by fact witnesses in several ways. The availability and quality of witness testimony naturally erodes over time, due to a variety of factors. Witnesses will die. Witnesses will forget, or their memories may become frail and unreliable with advancing age. Witnesses may also lose interest, and no longer be willing to recall traumatic events of long ago (Cayley 2012:115).
Despite these challenges, however, witnesses remain a key source of evidence for mass atrocity trials. Ideally, such witness accounts should be collected and preserved as soon as possible. They may be preserved in the form of writing, audio recordings, or video recordings. This function may be performed by formal mechanisms, such as fact-finding commissions and documentation centres (See Etcheson 2005:63).
As Cayley notes, even if a witness is unavailable at the time of trial to authenticate the statement, and/or to be cross-examined regarding their statement, the court may still consider their recorded testimony as probative and useful to ascertaining the truth. (Cayley 2012:116).
There are many kinds of potentially relevant documentary evidence in mass atrocity trials, including original documents from organisations or individuals involved in carrying out atrocities; contemporaneous photographs and films; and contemporaneous domestic and international news accounts (Cayley 2012:117). With the passage of time, however, such documentary evidence may degrade and be lost forever (Chopra 2015:217).
The passage of time may also enable perpetrators or their associates to destroy potentially incriminating evidence. Cayley notes that individuals engaged in mass atrocity crimes often go to great lengths to destroy evidence of their culpability. They can, for instance, burn or otherwise destroy documents and other traces of their acts (Cayley 2012:110; Combs 2018:249). This point is very pertinent to the situation in Bangladesh, where it has often been claimed that extensive evidence was destroyed after the conflict and was therefore no longer available (Beringmeier 2018:273–74).
A system for preserving documents and ensuring an appropriate chain of custody for such documents following mass atrocities is therefore very important. This function may be undertaken, as above, by fact-finding commissions and/or documentation centres. It could also be undertaken by a UN-backed International, Impartial and Independent Mechanism, such as that established for the Syrian Arab Republic (United Nations General Assembly Resolution 71/248 of 2016).
Long-delayed prosecutions may be dealing with crimes that occurred in very different political, social and historical contexts, and expert witnesses may help shed more light on those contexts. Their analytical evidence can be particularly valuable in old cases, when there are only fragmentary bits of information available regarding certain events, but when there are enough fragments with which skilled analysts can reconstruct aspects of the criminal events which may help judges understand the relevant contexts (Cayley 2012:119).
Experts may also assist the court with forensically unpacking aspects of the official narratives of the conflict, such as official death tolls. In this respect, experts may assist by providing estimates of the number of victims, on the basis of scientific analysis. This technique was used at the Extraordinary Chambers in the Courts of Cambodia (ECCC), where a team of independent expert demographers was engaged to carry out a focused study of the question (Cayley 2012:119). Such scientific studies by independent experts, in addition to assisting the court in making more accurate findings on death tolls, will also enable it to generate more responsible historical narratives of the conflict (See Zammit Borda 2021).
In Bangladesh, there has been controversy around the official death toll. Judges at the ICT-BD have regularly made reference to the higher official death toll of “some three million people” killed in the 1971-conflict(Beringmeier 2018:30). In so doing, the ICT-BD judges have remained faithful to Bangladesh’s official narrative (Chopra 2015:217), and have severely closed down any questioning of this number. It is easy to see why the ICT-BD judges may have adopted this hard-line stance. The questioning of death tolls is a technique frequently used by historical revisionists, who tend to claim that the total number of victims was drastically lower than the official number (Hanson Green 2020:31). However, the fact remains that the 3-million estimate was not established by a scientific study by independent experts. The experience of the ICT-BD, therefore, indicates the importance of expert witnesses in assisting courts to scrutinise and verify official death tolls impartially and scientifically, in order to, on the one hand, provide an estimate based on a scientific study and, on the other hand, reduce, as Ignatieff put it, the number of lies that can “be circulated unchallenged in public discourse”(Ignatieff 1996:113).
Criminal prosecutions may not always be necessary or desirable, particularly after a long delay (David 2017:172). In some countries where policies of forgetting or suppression have been pursued, a common justification has been that engaging the past would only provoke further conflict (Miller 2021:647). There is an argument that initiating long-delayed prosecutions after several decades would simply reignite old hatreds in society. Thus, after the passage of decades, it is possible to argue that transitional justice mechanisms other than criminal trials may be better suited to dealing with the past.
However, the countervailing view is that, unless and until criminal prosecutions of mass atrocities occur, hatreds and resentments will continue bubbling below and, in some cases, above the surface. In such cases, a failure to mount trials would “allow old wounds to fester” (Rafiqul Islam 2015:305). From this perspective, therefore, criminal prosecutions, even when they are long delayed, are necessary to achieve justice.
In Bangladesh, in light of the endemic and destabilising culture of impunity that was allowed to prevail for decades, it is perhaps not surprising that, criminal trials were prioritised. However, the divisions in Bangladeshi society brought about by the 1971-conflict and the culture of impunity that followed, cannot be mitigated only by a legal process and there remains a need for a broader reconciliatory approach towards healing the nation.
Bangladesh remains a case of international interest. How and whether the country is able to achieve this ambitious goal will offer import lessons to transitional justice scholars and practitioners alike (D’Costa 2015:366).