Introducing Briana Abrams, Sophie Kaiser & Maya Karwande

It's our great pleasure today to welcome Briana Abrams (left), Sophie Kaiser (right), and Maya Karwande (center) as IntLawGrrls contributors. All 3 were interns this year in the University of California, Berkeley, School of Law International Human Rights Law Clinic, working under the supervision of our colleague, Director Laurel E. Fletcher.
► Briana, who will receive her J.D. degree this month, grew up in the San Francisco Bay Area and studied Sociology and Spanish Literature at the University of California, San Diego prior to attending law school.
► Sophie, who is completing her 2L year, is from Little Rock, Arkansas. Before entering law school, she studied Political Science at the University of Michigan and International Relations at the Fletcher School of Law & Diplomacy at Tufts University.
► Maya, like Sophie, is a rising 3L. Originally from Salt Lake City, Utah, she majored in Political Science and Peace and Justice Studies at Tufts before starting law school.
In their introductory post below, the 3 describe the current work of the International Crimes Tribunal of Bangladesh.
Briana, Sophie, and Maya have chosen to honor Jahanara Imam (below left). (photo credit) Of Imam, a writer and political activist who was born in 1929 in what was then West Bengal, British India, who died in 1994 in Detroit, Michigan, and who was buried in Dhaka in her native Bangladesh, they write:

'Mostly known as Shaheed Janani (mother of martyrs), she initiated a movement for the trial of war criminals through forming Ekatturer Ghatak Dalal Nirmul Committee in 1992.'

Today, she joins other inspiring women on IntLawGrrls' transnational foremothers page.
Heartfelt welcome!

After 40 years, justice to victims of 1971 Bangladesh war

(Our thanks to IntLawGrrls for the opportunity to contribute this introductory post)

More than forty years after Bangladesh’s 1971 bloody war of independence from Pakistan, the International Crimes Tribunal of Bangladesh is working to end impunity for the crimes committed during the conflict. (map credit)
The human rights abuses and war crimes carried out by the Pakistani soldiers and Bangladeshi irregular forces included the targeted mass killing of Hindus, intellectuals, and widespread sexual violence against women. The International Crimes (Tribunal) Act of 1973 provided for the establishment of a tribunal to prosecute crimes committed during the war. However, a few years after the Act’s initial adoption, the political landscape changed and all accountability efforts were put off until 2008.
The trials began in October 2011. The Tribunal’s jurisdiction does not extend to former members of the Pakistani army, and therefore the Tribunal is not able to prosecute those individuals most responsible for the international crimes committed. All seven of the accused are Bangladeshis alleged to have assisted the Pakistani forces.
Prosecuting individuals under a forty-year-old war crimes domestic statute presents important questions about how these international crimes are defined in domestic law and what standards the court should apply. The Bangladeshi government has affirmed that the trials will be conducted in accordance with international legal standards. The former law minister pledged that the trials
“will not violate human rights…and due process of law will be truly observed”—including “laws from around the world.”
Yet officials also have emphasized that the International Crimes Tribunal is a domestic tribunal governed by Bangladeshi law.
So what happens when these two sets of laws are in conflict or tension?
As IntLawGrrl Kristine A. Huskey posted  last year here and here, the International Crimes Tribunal has received criticism, including letters from Human Rights Watch, the International Center for Transitional Justice, and Stephen J. Rapp, the U.S. Ambassador at Large for War Crimes Issues. Critics contended that the Tribunal falls short of meeting international standards in some areas, and that it should strengthen its practices in others. These criticisms included concerns about:
► Due process protections for the accused;
► Extent to which the definitions of the crimes in the Act are consistent with customary international law;
► Availability of death penalty;
► Provisions for witness protection; and
► Pre-trial and trial procedures.
Thus, the Tribunal finds itself facing particular challenges prosecuting international crimes in a domestic court. These challenges include lack of national expertise in international law, debate over the relevance of international law in determining the definitions of offenses in the domestic statute, and evidentiary standards. Bangladesh, like the domestic tribunals in Iraq and Indonesia, has been widely criticized as politicized and failing to uphold fair trial standards. Yet in Bangladesh there is the perception that advocacy for international standards fails to take into account that the Tribunal has instituted due process procedures that are more generous than the accused would enjoy before the regular criminal courts. With these challenges, the spotlight is on Bangladesh to see if it can become an example that fair and legitimate prosecutions of international crimes are possible in a domestic tribunal.
As interns in the International Human Rights Law Clinic at the University of California, Berkeley, School of Law, we have worked to support the Liberation War Museum, a leading Bangladeshi civil society group.

Read On! Climate Change, Forced Migration, and International Law

(Read On! ... occasional posts on new publications)

Four years ago, when I embarked on the research project that led to my book Climate Change, Forced Migration, and International Law, just published by Oxford University Press, there was a rather scant literature on the impacts of climate change on human movement. Much of what did exist, particularly in the field of international law, was based on academic analysis of existing international law frameworks, especially refugee law, and assumptions about the nature and scale of displacement – largely because of the absence at that time of comprehensive empirical studies.
My objective was to map the degree to which existing international legal frameworks could already cater for the protection needs of people displaced by the impacts of climate change, and, perhaps more crucially, to identify the extent to which ‘climate change’ could be isolated as the cause of predicted widespread movement – and whether that mattered in terms of finding legal solutions.
This book critically examines whether states have obligations to protect people displaced by climate change under international refugee law, international human rights law, and the international law on statelessness. It evaluates:
► Whether the phenomenon of ‘climate change-induced displacement’ is an empirically sound category for academic inquiry by examining the reasons why people move (or choose not to move or are unable to move);
► The extent to which climate change, as opposed to underlying socio-economic factors, provides a trigger for such movement; and
► Whether traditional international responses, such as the conclusion of new treaties and the creation of new institutions, are appropriate solutions in this context.
In this way, the book queries whether flight from habitat destruction should be viewed as another facet of traditional international protection or as a new challenge requiring more creative legal and policy responses.
What makes it distinctive from an international law perspective is that it is grounded in fieldwork in some of the states most affected by the impacts of climate change: the small island states of Kiribati and Tuvalu in the western Pacific, and Bangladesh and India. Drawing on empirical evidence collected through interviews and observations on the ground, it reconceptualizes the phenomenon of ‘climate change-related displacement’ to emphasize the needs and desires of affected communities, the importance of community participation, and the necessity of multi-pronged approaches rather than a one-size-fits-all response, so that legal and policy developments are attuned to the groups they are intended to serve.
If such contributions are not fed into the debate, we may end up with solutions that work neatly in theory, but which do not respond to the likely patterns of movement on the ground. Crucially, law and policy in this area must be developed within a human rights framework, underscored by broader humanitarian norms such as the fundamental principles of humanity, human dignity, human rights and international cooperation.

On December 6

On this day in ...
... 1971 (40 years ago today), Pakistan severed diplomatic relations with India after the India government recognized the territory formerly known as East Pakistan as an independent nation-state. These development occurred amid an intense air war between India and Pakistan. Pakistan would surrender 10 days later, and that former territory, "Bangladesh -- meaning 'Bengal country' -- was born." (map credit)

(Prior December 6 posts are here, here, here, and here.)

Will tribunal bring Bangladesh justice?

(Part 2 of a 2-part series; Part 1 is here)

Having outlined the background and nature of the International Criminal Tribunal (ICT) in Bangladesh (flag at right) in yesterday's post, today I will discuss specific concerns raised n the international community, most particularly by nongovernmental organizations such as Human Rights Watch and by Stephen J. Rapp (below, second from left), U.S.Ambassador-at-Large for War Crimes Issues.

Issues of Concern
As a preliminary matter, one must wonder why Rapp and others are so exceptionally concerned with what goes on in Bangladesh’s domestic courts and why the Bangladesh government has shown itself to be at all receptive to outside intervention.
After all, the victims and the alleged perpetrators of crimes committed during the 1971 War of Liberation are Bangladesh citizens. The majority of crimes occurred in Bangladesh (East Pakistan at the time), and the trials and post-conviction incarceration will occur in Bangladesh courts and prisons. Moreover, as noted in a position paper by the International Crimes Strategy Forum, a coalition working toward accountability relating to the 1971 conflict,

'the legitimacy of the International Crimes (Tribunals) Act is dependent not upon any international instrument of law, irrespective of Bangladesh being or not being a party to it, but on an overwhelming decision of the Bangladesh Parliament, a democratically elected body of representatives constitutionally mandated to enact legislation. As such, the ICT can only be interpreted in light of the framework set by by the ICTA and not any other legal instruments of international nature.'

However, as Rapp has pointed out, the ICT was established specifically to prosecute international crimes, such as genocide and war crimes, which are crimes defined under international law and recognized as violations of international law.
Despite the fact that the ICT proceedings will occur in domestic courts pursuant to domestic statute, there is justifiable interest in seeing that “international law” is followed according to international standards.
Since the promulgation of the 1973 Act, there has been considerable development in international criminal law, and much can be gained by looking at other international forums, such as the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, the Special Court of Sierra Leone, and the International Criminal Court.
Finally, as a state party since 2000 to the International Covenant on Civil and Political Rights, Bangladesh is obligated at all times to honor the treaty -- most especially when it purports to be enforcing international law.

Fundamental Constitutional Rights
By far, the most troubling concern is that related to the constitutional amendments (Articles 47(3) and 47A), which deny a number of constitutional protections to Bangladesh citizens who are being detained or prosecuted under the ICTA.
For example, Article 47(3) prohibits such individuals from challenging any law, including the amendments themselves, on the ground that it is unconstitutional. Article 47A of the Bangladesh Constitution further strips individuals detained or prosecuted under the ICTA of specific constitutional rights that are guaranteed to all other persons in Bangladesh, such as the right to protection of the law (Article 31), protection from ex post facto (retroactive) laws and the right to a speedy and public trial (Article 33), and the ability to enforce guaranteed rights (Article 44).
These are fundamental due process rights, and are guaranteed not only in international law, but also to all other suspected criminals in Bangladesh. Withholding such rights from suspected war criminals who have not even been convicted does not engender faith in the fairness of the process or outcome.

Rights of the Accused
There are a number of worrisome provisions in the ICTA and the Rules of Procedure and practices of the Tribunal. They have have been set forth and discussed in detail, with specific reference to other tribunals’ rules and procedures for point of comparison, in a 10-page letter that Rapp sent the Bangladesh government, as well as in letters by Human Rights and other international organizations. The following are some of the many concerns going to provisions affecting the rights of the accused:
► Individuals can be arrested and questioned before formal charges are brought, they can challenge their detention only once, and they have no right of appeal. Currently, at least five individuals have been in detention for over six months, some as long as ten or more months. They can expect no possibility of release until after their trial, given that they have already lost their initial applications for bail.
► The rules also allow for the interrogation of the (informally) accused without counsel present. There is no procedure for informing questioned individuals of their privileges or rights or that they are entitled to counsel. Already, several detainees have been interrogated without counsel present based on the prosecution’s request to the Tribunal. During the interrogations, which lasted all day, the detainees were denied the opportunity to have private conversations with their counsel during breaks, and were prohibited from discussing the interrogations with counsel altogether.
► There has been no investigation into claims of torture and abuse of individuals in detention.
► There is no procedure for challenging the jurisdiction of the Tribunal or making constitutional challenges to the ICTA or Rules of Procedure.
► There is no requirement that the prosecution disclose exculpatory evidence (“unused evidence”) to defendants or their counsel, nor are there any provisions that enable a defendant to request discovery. Additionally, the prosecution is only required to disclose the evidence upon which it will rely three weeks in advance of the trial to the Tribunal; rules do not specifically require disclosure to defendants or their counsel.
► The Act specifically provides that the Bangladesh Evidence Act and the Code of Criminal Procedure, both of which apply in all criminal proceedings in Bangladesh domestic courts, do not apply to proceedings under the ICTA. Further, the Act provides that

'the Tribunal shall not be bound by the technical rules of evidence.'

► Though the burden of proof is on the prosecution, there is no presumption of innocence. Additionally, the burden of proof is reversed to the defendant in an alibi defense.
It could be argued that some of these inadequacies, standing alone, are not enough to evince a lack of due process. However, allowing all of them in the same proceeding -- especially when considered together with the constitutional amendments, which deny fundamental protections to the defendants --the ICT, as it now stands, falls far short of the international standards of due process that are evident in the rules and procedures in the ICTY, ITCR, and the ICC.
Moreover, the ICT rules and procedures, together with the constitutional amendments, clearly violate the guarantees under Article 14 of the ICCPR. In short, Bangladesh would be violating its international law obligations were the ICT to proceed without modification.

Motions and Appeals
There is no appellate chamber within the ICT, and the Rules of Procedure only allow for appeal on matters of law to the Appellate Division of the Supreme Court -- after the conviction of an accused. No procedures allow both parties to file motions for appropriate rulings and relief and to seek interlocutory appeal of key adverse decisions. Allowing parties to appeal decisions on evidence and other significant issues during the course of the trial, particularly given the complexity of international crimes, is more efficient and fair, and avoids waiting until an acquittal or conviction in the event error occurs during trial.

Neutrality and Equality of Arms
While an estimated 1,600 people took part in the atrocities, it is clear that the Tribunal will not be prosecuting soldiers in the Pakistani army or the Bengali freedom fighters.
Instead, the government appears to be targeting only Bangladesh citizens accused of collaborating with West Pakistan and committing certain crimes. Five of the seven alleged collaborators are members of the Jamaat-e-Islami party, Bangladesh’s biggest Islamic party and a partner in the main opposition alliance against the party now in control, the Awami League. The other two accused are from another opposition group, the Bangladesh National Party. This has led to criticism that the Tribunal is merely a vehicle to repress political opposition. To exacerbate the problem, there is no process in the ICTA or Rules of Procedure to challenge the Tribunal judges.
Equality of arms is a fundamental component of a fair trial, as every party must have the opportunity to present its case under conditions that do not place either party at a substantial disadvantage.
The Tribunal could enhance both the fairness of the process and the perception of fairness by establishing a Defense Office, which could play an important role in protecting the rights of the accused by ensuring that defense counsel have adequate support to prepare and present cases and by providing training on investigative techniques and access to jurisprudence and developments in international criminal law. Further, a Defense Office could maintain a list of qualified lawyers who can be assigned in the event that a defendant cannot afford legal counsel. Cases involving allegations of war crimes, crimes against humanity, and genocide are already complex, and the crimes here date back decades. It is important for a fair and just outcome that the attorneys for both sides have the knowledge, the expertise, and the ability to effectively bring their case or defend their clients.

Protection of Witnesses
The ICTA does not contain any provisions for the protection of witnesses whose testimony may be necessary in the trials.
It is the experience of other international crimes tribunals, particularly those involving war crimes and genocide, that witnesses have legitimate concerns about being subjected to intimidation, threats, and actual violence -- concerns that may keep them from testifying. The ability to ensure the attendance and safety of witnesses is an essential component of a successfully functioning tribunal process.
Accordingly, at a minimum, there should be resources and a process in place to protect witnesses, victims and family members before, during, and after court appearances, and to provide secure transportation to and from the court, as well as address the protection of personal information in a manner that will not deny the right of defendants to see the evidence against them.

Will Justice Prevail?
Just a few weeks after his second visit to Bangladesh, Rapp spoke at a briefing on the International Crimes Tribunal of Bangladesh, which was sponsored by the American Society for International Law, the Center for Human Rights & Humanitarian Law at American University’s Washington College of Law, and The Crimes of War Education Project. (credit for photo of, from left, Caitlin Reiger, Director of International Policy Relations for the International Center for Transitional Justice, Rapp, yours truly Kristine A. Huskey, and international criminal lawyer John Cammegh, panelists at ASIL event)
During the discussion, Rapp made clear that he would be returning to Bangladesh to continue his involvement and to provide assistance to the ICT.
Interestingly, at the end of the briefing, Bangladesh’s top diplomat to the United States, Ambassador Akramul Qader, passionately defended the Bangladesh justice system and Parliament. He took the opportunity to point out that nobody on the ASIL panel was from Bangladesh, resulting in a “one side of the fence” discussion.
Perhaps mirroring the political tension in Dhaka over the ICT, several Bangladesh citizens were quick to respond.
Among them was Zakir Hafez, an adjunct international law professor in the School of International Service at American University. He remarked that everyone in Bangladesh wants to see the perpetrators prosecuted, but said that he could not see “truth and independent justice” in the composition of the Tribunal judges or its rules. Hafez then summed up one reason why it is important that the ICT be fair:

'If the Tribunal is not in accordance with international justice and the rule of law, it will not be a good legacy for Bangladesh.'

As for why the ICT matters beyond Bangladesh, retired U.S. Air Force Colonel Morris Davis concluded the ASIL briefing with this compelling and poignant remark:

'I can tell you as a career military officer that war is hell. The law of war makes it a little less hellish and as this Tribunal contributes to that body of law – international humanitarian law and the law of war — every little bit contributes to that body of law and it is important, to all of us.'

As America was celebrating its freedoms over the July 4th holiday weekend, it was reported that the ICT issued additional amendments to its rules of procedure. The tribunal registrar stated that the amendments would ensure that the war crimes trials would take place under

'universally recognised standards of due process and justice,'

but conceded that the Rules of Procedure may not be up to international standards yet.
While the amendments may be designed to meet the concerns of Ambassador Rapp, who has yet to comment on the recent changes, they still fall short of securing full due process protections for the accused and fail to bring applicable laws into compliance with international standards, as pointed out by Human Rights Watch in a recent press release. The more significant amendments:
► Change the bail scheme and strong likelihood of indefinite detention, by requiring the release on conditional bail of an accused who has been detained for more than a year pending investigation of offenses. In exceptional circumstances, detention may be extended for a further period of six months.
►Allow counsel of an accused to be present if the accused is making a confessional statement. Counsel would still be prohibited from participating, making statements, or engaging in conversation with his or client during the interrogation.
► Allow both defense and prosecution to request the Tribunal to review any orders issued. Even with the changes, there is still no review of pre-conviction orders from an appellate court,nor the ability to challenge the jurisdiction of the Tribunal.
► Explicitly state that a defendant is presumed innocent until found guilty, that the prosecution must prove its case beyond reasonable doubt, and that the mere failure by the defense to prove a plea of alibi does not render the defendant guilty.
The new rules also give more power to the tribunal to ensure the protection of witnesses and victims, such as regarding security during transportation and accommodations.
The amendments, however, do not respond to a number of suggestions by Ambassador Rapp and international organizations
Most significantly, defendants are still denied their full rights under the constitution by way of a constitutional amendment.
Moreover, there is no reference to the possibility of using the ICC as a guide either procedurally or substantively, an addition that Rapp maintained could help resolve many concerns without requiring an overhaul of the applicable laws, including the Bangladesh Constitution, and rules entirely.
It remains to be seen whether justice for international crimes will finally prevail in Bangladesh.

Revival of Bangladesh war crimes tribunal

Almost 40 years later, the people of Bangladesh will finally see justice done for war crimes and other atrocities committed during the 1971 War of Liberation. (map credit)

Or will they?
The International Crimes Tribunal (ICT) of Bangladesh, which just in the last year began gearing up to try individuals accused of war crimes, crimes against humanity, genocide, mass rape and other international crimes, is certainly necessary to provide accountability and to address longstanding cries of impunity for the alleged criminals. However, there has also been sharp criticism of the ICT’s statutes, rules of procedure, and practices, as well as deep concern over a related amendment to the Bangladesh Constitution.
Critics have pointed specifically to the lengthy pre-charge detention of suspects, interrogation without counsel present, inability to challenge the jurisdiction of the tribunal or make interlocutory appeals, lack of presumption of innocence, potential for self-incrimination, lack of protections for witnesses and victims, and overall lack of due process rights for defendants as just a few of the numerous infirmities present in the ICT. Further, many have characterized the Tribunal as politically motivated, adding to an atmosphere in Bangladesh that is already fraught with political tension.
Justice can only be done for the victims, their families, and the perpetrators if the Tribunal is fair and is seen as being fair by the people of Bangladesh and the international community. Bangladesh is a key participant in this international community, given that it is the first state in South Asia to become a party to the Rome Statute of the International Criminal Court, as well as a signatory to the International Covenant on Civil and Political Rights.
Perhaps in the spirit of that participation, the Bangladesh government recently invited Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes Issues, to come to Dhaka. The Foreign Secretary, Mohamed Mijarul Quayes, said that he invited Rapp to ensure the “fullest credibility” in the tribunal process. In anticipation of the visit, the Bangladesh Foreign Secretary reportedly stated,

'There are two things we want from this process: For it to be transparent and consistent with international standards.
'We hope these consultations will help.'

Since that first meeting, Rapp has visited Dhaka twice. In March, Rapp submitted to the Bangladesh government a 10-page letter setting forth a number of concerns and recommendations. At the heart of Rapp’s interest, like other international concern, is the perceived need to have the laws and procedures of the ICT consistent, or at least up to par, with the standards of international law and procedures of well-respected international forums, such as the International Criminal Tribunal for Rwanda and the International Criminal Court.
Bangladesh now has a unique opportunity to have trials in its domestic court for international crimes of the most heinous nature. Trials of such importance should be fair and consistent with international standards. They must be, for justice to prevail.

A Brief History
As set out here, the International Crimes Tribunal was established in 1973 to address crimes that had been committed during the 1971 War of Liberation, in which East Pakistan seceded from West Pakistan and ultimately became the independent state of Bangladesh. The armed conflict arose out of increasing discontent in the East and a national election won by Bengali nationalist leader, Sheikh Mujib.
The fighting began in March 1971, when West Pakistan launched “Operation Searchlight” against the Bengalese population in East Pakistan, with the aim of quelling nationalistic tendencies. This operation ended ten months later, when India invaded Pakistan and defeated the Pakistani forces in a matter of days. (credit for 1971 photo of Indian tanks en route to Dhaka)
Bangladesh declared its independence shortly thereafter, and Sheikh Mujib became the new country’s first prime minister.
The International Crimes (Tribunals) Act (ICTA) was passed in 1973 with this stated purpose:

'[T]o provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes, and other crimes under international law.'

At the time, the ICTA was a significant contribution to the development of international criminal law. However, several legislative and/or executive orders effectively halted the trials and granted immunity to certain select groups. An example was the Bangladesh National Liberation Struggle (Indemnity) Order, issued in 1973, which gave immunity to all “freedom fighters” in connection with the struggle for liberation. Additionally, Prime Minister Sheikh Mujib declared a general amnesty for all Bangladesh citizens who had collaborated with West Pakistan, except those accused of murder, rape, arson, or genocide. Later, Pakistani soldier prisoners of war, including those who had committed war crimes, were repatriated to Pakistan without ever being charged. And, in 1975, individuals who had been tried and convicted under the Collaborators Order were pardoned and the Order repealed.
The ICTA was never repealed, however. It now stands as a mechanism with which to prosecute Bangladeshi citizens who were not previously given immunity for international crimes committed forty years ago.
The ICT lay virtually inactive until 2008, when the current Prime Minister, Sheikh Hasina (right), ran on a campaign to prosecute “the war criminals” from the Liberation War. After her victory (prior IntLawGrrls post), and with her party, the Awami League, in power, Parliament passed a resolution in early 2009 calling for speedy trials under the ICTA. (photo credit) That statute was marginally amended later in the year. In mid-2010, the Tribunal issued its Rules of Procedure, and within a short time, six individuals had been arrested and detained by the authority of the Tribunal. No charges have been brought to date.

International Community Voices Its Concerns
Well before U.S. Ambassador Rapp entered the debate, the international human rights and humanitarian law community had already expressed concern about the ICT. It claimed that the rules lacked adequate protections for the defendants and witnesses, that a related constitutional amendment was fundamentally unfair, and that the trials were politically motivated. Human Rights Watch submitted a letter expressing concern and making recommendations to the Bangladesh government, as have groups like the War Crimes Committee of the International Bar Association and the International Center for Transitional Justice. While the government has not rejected such recommendations outright, it has not publicly responded to such suggestions quite as positively as it has to Rapp’s participation, perhaps for obvious reasons.
Importantly, Rapp brings a valuable experience and perspective on war crimes issues. Formerly the Senior Trial Attorney and Chief of Prosecutions at the International Criminal Tribunal for Rwanda and then the Chief Prosecutor the Special Court in Sierra Leone, Rapp led the prosecution of former Liberian President Charles Taylor.
Rapp was welcomed in Dhaka by the Bangladesh government twice this year. The U.S. dignitary had the opportunity to meet with Tribunal judges, the registrar, investigators, prosecuting counsel, and defense counsel, and to visit the Liberation War Museum. Rapp also met with the Foreign Minister, the Law Minister, and the Foreign Secretary, as well as representatives from the Bangladesh Supreme Court Bar. His visits are of keen interest as they are the first high-level international intervention in the ICT.

(Coming tomorrow in this 2-part report, a version of which was posted at the Crimes of War Project:Specific concerns of Rapp and others with the Bangladesh International Criminal Tribunal. Part 2 is here.)

Go On! Briefing on the International War Crimes Tribunal in Bangladesh

(Go On! is an occasional item on symposia and other events of interest)

On May 19, 2011, the American Society of International Law, together with the Crimes of War Education Project and the Center for Human Rights and Humanitarian Law of American University Washington College of Law, will host a briefing on the International War Crimes Tribunal of Bangladesh. The event will be held at the Tillar House (2223 Massachusetts Ave., N.W., Washington, D.C.) from 12:00pm to 2:00pm. You can register for the event here.

The event will feature a presentation by U.S. Ambassador at-Large for War Crimes, Stephen Rapp (below left), with commentary by Caitlin Reiger, Director of International Policy Relations at the International Center for Transitional Justice and John Cammegh of 9 Bedford Row (London) and a former defense counsel in the Special Court for Sierra Leone.
The briefing and discussion will address recent efforts to restart the forty-year-old effort in Bangladesh to bring to justice those responsible for war crimes, crimes against humanity, mass rape, and genocide dating to the 1971 War of Liberation from Pakistan. The International Crimes Tribunal was established by the International Crimes (Tribunals) Act in 1973 and later amended in 2009.
Many welcome the tribunal as addressing a longstanding need for accountability for crimes committed during the conflict, which is seen as one the largest humanitarian crises in modern times, as up to 3 million people were tortured to death or killed, 200,000 women raped and ten million refugees were forced to flee to neighboring India.
The Tribunal as it is being implemented has also drawn heavy criticism from within Bangladesh and the international community (including the War Crimes Committee of the International Bar Association) as being politically motivated, pointing out, for example, that the rules and procedures carry scant due process protections and are not on par with well-accepted international criminal tribunals, such as the ITCY and the ITCR. At the invitation of the Bangladesh Government, Ambassador Rapp spent time in Bangladesh earlier this year and just last month, he submitted numerous recommendations to the Bangladesh Government regarding the ICT standards.
The briefing at the Tillar House promises to be an interesting and enlightening event.

On January 19

On this day in ...
... 1966 (45 years ago today), the daughter of India's 1st prime minister, Jawaharlal Nehru, became the 1st woman to serve as Prime Minister of India. She was 48-year-old Indira Gandhi, whom the ruling Congress Party had "chosen at the end of a bitter leadership battle." Gandhi promised to

'strive to create what my father used to call a climate of peace.'

Yet as we've posted, her tenure -- from 1966 to 1977, and again from 1980 to 1984 -- would be marred by the violent struggle that led to the founding of Bangladesh, to conviction on corruption charges followed by a national state of emergency, to the storming of a temple held by Sikh militants, and finally to her assassination by her own Sikh bodyguards.


(Prior January 19 posts are here, here, and here.)

Kosovo: Secession dilemma déjà-vu

(Many thanks to IntLawGrrls for giving me the opportunity to contribute this guest post!)

Since 17 February 2008 – the day of Kosovo’s declaration of independence from Serbia – it has become rather pressing to understand whether this act has legal precedential value and hence what its consequences are. The International Court of Justice (below right) issued an Advisory Opinion on Kosovo this past summer. (Prior IntLawGrrls posts available here.) But that opinion has not shed much, if any, light on the question of precedence.
Whether the Court was asked, on the one hand, to analyze the legal consequences of the independence of Kosovo, or, on the other hand, merely to “narrow[ly] and specific[ally]” reply whether “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law,” remains, of course, a separate debate.
Be it as it may, the dilemma remains:

Is Kosovo a precedent for (remedial) secession?

My article recently published in the Goettingen Journal of International Law, "Secession in Theory and Practice: The Case of Kosovo and Beyond," attempts to put forward a lucid account of the legal implications of Kosovo’s independence. To do so, the article explores the international regulations on secession, as well as the circumstances that led to the case at hand.
The paper carves out the place of secession in international law by appeal to fundamental principles and legal doctrine, and concludes:
► There is no general jus secedendi, or right to secede.
► There are instances in which a right to secession is recognized under international law. These refer to states explicitly acknowledging a right to secession in their domestic law, or multinational states recognizing that their constituent peoples have the right to self-determination.
► There is one controversial case that divides scholarship, the one of remedial secession.
► Lastly, there is a trend towards the legality principle governing secessions, as distinguished from the traditional neutrality doctrine.
It is useful to consider the theory on secession with state practice, to the extent that such practice can be discerned from major socio-political events of Kosovo’s history – from the battle of Kosovo Polje in 1389 to Security Council Resolution 1244 (1999) that set up the United Nations Interim Administration Mission in Kosovo (UNMIK). From the juxtaposition of this theory and practice, a second conclusion can be drawn: Kosovo is a case of remedial secession and thus it represents a potential legal precedent.
And yet the exceptionality discourse!
While the elements of remedial secession are gathered, states deprived this instance of practice of its precedential value, and made it a legally insignificant act.
Some explanations are in order.
An action that is novel or inconsistent with current practice gains precedential value if other states accept it; acquiescence and protest are the fundamental state reactions to an action, therefore those are of interest in the case of Kosovo. Serbia, as the state with most interest in resolving the Kosovo case, has strongly protested against the legality of Kosovo’s secession. Other states protested or decided to withhold recognition. All officially identify the potential of setting a legal precedent as reasoning.
The fascination about the Kosovo case lies in the discourse of those states that chose to support and recognize Kosovo as an independent state, describing it as a sui generis/special/exceptional case. Throughout the years that it has sought independence from Serbia, Kosovo has maintained that it has the legal right to do so. In this context, the most staggering statement is made by Kosovo itself in its own declaration of independence:

Kosovo is a special case arising from Yugoslavia’s non-consensual breakup and is not a precedent for any other situation.

The Kosovo secession has been articulated, but as a non-precedential situation. In the end, as scholars Georg Nolte and Helmut Philipp Aust wrote in an article published last year,

states are both subjected to international law and create and authoritatively interpret it.

And in this case, even the recognizing states have consciously and clearly opted not to create a general rule governing remedial secession. Ultimately, states have guarded the status quo, and continued to act allergic to a right to remedial secession with set boundaries and clear coordinates. Ironically, the consistent state practice is evidence of the absence of a customary right of remedial secession.
In other words, the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism. The consequences of not assuming the precedent are, regrettably, far more important.
The force of remedial secession lies in its prevention potential – empowering minority groups to hold governments accountable to their international obligations. It is not an implosive weapon within the Westphalian system, but rather a non-traditional human rights mechanism.
By presenting Kosovo as unique, the international community undermined the theory of remedial secession, and made states and their borders sacrosanct even when a government, by way of its discriminatory and repressive actions against part of its population, puts its own raison d’être into question. It is a perverse implication, one that states will have to deal with when another unique Kosovo enters the international arena.
Thirty-nine years ago, Bangladesh seceded from Pakistan. The debate whether Bangladesh set a precedent for a right to remedial secession continues. Regrettably, Kosovo is merely a Bangladeshi déjà-vu.

On October 16

On this day in ...
... 1905 (105 years ago today), a Partition of Bengal took effect, having been announced 3 months earlier by George Nathaniel Curzon, Viceroy of what then was the British colony of India. Located in the northeast region of the subcontinent, at the bay of the same name. Bengal province was about the size of the country of France. (map credit) But it had a population of more than 80 million people, many more than France. Opposition to the partition led to its annulment in 1911. Today 1 area within the region is the country of Bangladesh; another is part of the country of India.

(Prior October 16 posts are here, here, and here.)

On February 21

On this day in ...
... 2009 (today), by declaration of UNESCO, the United Nations marks the 10th annual International Mother Language Day to "promote linguistic and cultural diversity and multilingualism." The chosen date coincides with the day in 1952 when, in Dhaka, in what was then Pakistan but now is Bangladesh, police opened fire on university students who were demonstrating for the right to speak their native Bengali language. That event is commemorated in this pamphlet from Bangladesh's Dutch embassy. (credit for 2009 poster)
... 1971, in conclusion of a 6-week, 71-country U.N. conference in Vienna, Austria, diplomats adopted the Convention on Psychotropic Substances, a treaty aimed at a global law enforcement response to drug trafficking. The convention would enter into force on August 16, 1976. Monitored by the International Narcotics Control Board, it now has 175 states parties.

(Prior February 21 posts are here and here.)

Prime-Ministerial Puzzler

It appears that, following a "landslide victory" for her party, the Awami League, Sheikh Hasina Wajed (right) is about to become Prime Minister of Bangladesh, a post she previously held from June 1996 to July 2001. (photo credit)
The news prompts this
Prime-Ministerial Puzzler:

Is she the only woman ever so to have served her country?

Answer below.

Answer to Prime-Ministerial Puzzler

Answer to the Prime-Ministerial Puzzler above:

No.

That title belongs to Khaleda Zia (right), who preceded Hasina as Bangladesh's Prime Minister, from March 1991 to March 1996, and succeeded her as well, October 2001 to 2006. Both women are political dynasts: Hasina is the daughter of the 1st Prime Minister of Bangladesh, while Zia is the widow of the general who took over 2 years after a military coup ousted that 1st leader. Both men were assassinated, in 1975 and 1981, respectively. And both women remain fierce opponents. Indeed, the Los Angeles Times' story on Hasina's victory reported:

Even before the results became clear in Monday's election, however, Wajed's rivals, led by former Prime Minister Khaleda Zia, accused Wajed's group of vote-buying and dirty tricks. ....
The charges raised the specter of a return to the divisive accusations, work stoppages and street demonstrations that have made it difficult at times for leaders to govern effectively.

Asian Enigma answered

Answer to Asian Enigma above:

c) Philippines

Gloria Macapagal-Arroyo (below) has served as President since 2001. She is not is not the 1st woman to serve as President of the Philippines, however; Corazon Aquino held the post from 1986 to 1992. Notably, women have governed in 3 of the other Asian countries on this list:

a) Sri Lanka: Sirimavo Banaranaike was Prime Minister 1960-65, 1970-1977, and 1991-2000; her daughter, Chandrika Kumaratunga, Prime Minister in 1994 and then President from 1994 to 2005.

d) Bangladesh: Hasina Wajed, Prime Minister from 1996-2001, and her rival, Khaleda Zia, from 1991-1996 and 2001-2006.

f) South Korea: Han Myeong-Sook served as Prime Minister from April 2006 to March 2007.