Go On! WILIG Networking Breakfast

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

WILIG, the Women in International Law Interest Group of the American Society of International Law, will hold its annual networking breakfast at Tillar House, 2223 Massachusetts Avenue, N.W, Washington, D.C., on Thursday, July 26, 2012, from 8am-10am.
This annual breakfast features accomplished professionals in various practice areas of international law, who will discuss their career paths and offer advice and insights for women interested in pursuing careers in international law. The panel presentations will be followed by a Q&A and networking opportunities among panelists and attendees.
This year's panelists:
► Cristina M. Finch (left), policy director for women's rights, Amnesty International USA. Cristina focuses on women's and lesbian, gay, bisexual and transgender (LGBT) human rights as well as economic, social and cultural rights. She is also an adjunct professor at George Mason University School of Law and has worked for US House Representatives, as well as at the US Department of State.
► Alexandra Meise Bay (right), associate, Foley Hoag LLP. Xander, as she's known, is a member of the International Litigation and Arbitration Group at Foley Hoag. She has represented foreign governments, international corporate clients and sovereign officials in state and federal courts, international commercial arbitrations and investment treaty arbitrations.  Xander also has experience with matters involving Corporate Social Responsibility and has worked for prosecutors and judicial chambers in international criminal tribunals.
► Linda Menghetti (right), Vice President of the Emergency Committee for American Trade. Linda advises companies and works with Administration officials and Members of Congress and other businesses and NGOs in support of trade and investment policies. She has experience with WTO negotiations, bilateral and regional trade and investment agreements, U.S.-China trade and investment relations and international procurement issues.

► Justice Eusebia Nicholaus Munuo (left), Court of Appeal (Supreme Court) Tanzania.  Justice Munuo has been a member of the Tanzanian judiciary since 1970 and has been a sitting judge in the highest court in Tanzania since 2002.  She is also the President-Elect of the International Association of Women Judges. (photo credit)
You can register for the WILIG breakfast, which is free to ASIL members, here.
Hope to see you there!

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.

ER & 'Grrls bis

This time last year, IntLawGrrls gathered at the statue of Eleanor Roosevelt to have our photo made 'round ER, one of the 1st of our transnational foremothers, during the course of the annual meeting of the American Society of International Law.
This year, we decided to bring the statue to us: thanks to IntLawGrrl Kathleen A. Doty and her ASIL co-staffer, Isaac Tubbs (who also took the photo above), we IntLawGrrls contributors brought a cardboard cutout of ER to the ASIL meeting site. The image is 6 feet, just an inch taller than Roosevelt was in real life. The result is above, and depicts:
Bottom row, from left, Alexandra Huneeus, Kathleen A. Doty, Karen Bravo, Kathy Roberts, Hope Lewis, Elizabeth Trujillo, Saira Mohamed.
Middle row, from left, Christie Edwards, Elizabeth B. Ludwin King, Kristine A. Huskey, Caitlyn Antrim, Cymie Payne, Deena Sharuk, Hari M. Osofsky, Elizabeth Andersen, Amy Senier, Shana Tabak.
Top row, from left, Diane Marie Amann, Chiara Giorgetti, Eleanor Roosevelt, Lucy Reed, Stephanie Farrior.

ASIL Cable on WILIG Luncheon: Internationalization of Law: Diversity, Perplexity, Complexity, Thurs., Mar. 29, 2012, 1:30 pm

The annual Women in International Law Interest Group (WILIG) luncheon always serves both to build community and recognize the contributions of women in international law. This year's luncheon honored Mireille Delmas-Marty (left), Chair of Comparative Legal Studies and Internationalization of Law at College de France, and also featured opening remarks by U.S. Supreme Court Justice Stephen Breyer.
Professor Delmas-Marty's tremendous scholarly and public policy contributions are detailed in this year's annual program, and a full text of her remarks will be available on the Intlawgrrls blog. This ASIL Cable focuses on describing the event and reflecting upon Professor Delmas-Marty’s address, which is printed in full here.

The event began with warm welcomes from WILIG Co-Chair Kristine Anne Huskey and ASIL President David Caron. Justice Stephen Breyer then provided opening remarks that set a wonderful tone for the rest of the event through quoting Eleanor Roosevelt and explaining the critical role that law professors, and particularly Honoree Mireille Delmas-Marty, play in the work of international law. He described the "indefatigable" way in which she thinks, writes, and contributes to the web of rule of law. He said that he does not know anyone who does this better than Mireille Delmas-Marty.

Professor Delmas-Marty's analysis of the internationalization of law served as the centerpiece of this year's WILIG luncheon. She argued that we need imagination to introduce the complexity needed in international law to address diversity and resulting perplexity. She described the diversity stemming from different legal orders, multi-level governance, the many fields of international law, varying rates of legal evolution, and the wide range of key governmental and nongovernmental actors.

She then explained that diversity results in perplexity driven by disaggregation and fragmentation and two challenges that it poses. First, it poses a challenge for legal formalism: Is diversity a disruption or an irruption? Its fragmentation can lead to conflict, but its plurality can also help needed support needed evolution. Second, diversity poses a challenge of global governance: Is diversity a disease or a metamorphosis? Diversity could be a disease that weakens democracy and strengthens uncontrolled powers that act with impunity. But it could also help with law's needed evolution through a mix of hard and soft law.

Professor Delmas-Marty finally introduced the way in which imaginative introduction of complexity into the legal world could help address diversity and perplexity. She proposed an “ordered pluralism” that includes new techniques for integrating legal orders and new guidelines for sharing rulemaking and legal responsibility, with a focus on hybridization and harmonization. She noted that judges play a very important role in avoiding inappropriate extensions of power and argued for the need to organize judicial review at a global level between national and international levels, drawing from principles of complementarity and universal jurisdiction.

Professor Delmas-Marty concluded her remarks by examining the International Criminal Court's first verdict delivered 15 days ago and making two observations and one lesson. Her first observation was that complexity seems well-organized in the verdict, but that the result was also frustrating because the indictment and conviction did not cover all of the offences that accused allegedly committed. Her second observation was that complexity does not work without engagement of political realities and shared values. But she sees signs of progress and thinks that the court has a long shadow. Her lesson was to be patient but not passive. She said that we have a duty to improve legal instruments and view humanization of the law as a dynamic, interactive process. Beyond the challenge of complexity, there is an ethical challenge emerging of protecting our “common and plural humanity” that we need to meet imaginatively.

As someone who has worked on climate change and argued for more pluralist approaches in the face of international governance failures in that context, I am very sympathetic to Professor Delmas-Marty’s perspective. I think she is right that we need governance approaches that imaginatively incorporate diversity. Her remarks and examples made me interested in learning more about how she thinks the challenges of operationalizing such an approach might vary across substantive areas of international law, and when formal strategies for incorporating pluralism in new ways into international law might be most effective. I was particularly intrigued when I asked her about whether transnational agreements among subnational entities should be treated as part of pluralist international lawmaking or incorporated more directly into international law processes that she favored the latter approach. Her ideas open up many future possibilities for dialogue and for imaginative international legal work.

Following the question and discussion period, co-chairs Janie Chuang and Kristine Anne Huskey presented Professor Delmas-Marty with her award and "Prominent Women in International Law" mug. Professor Chuang then announced the election of the new co-chair Clara Brillembourg and secretary Milena Sterio, as well as new steering committee members. The event concluded as is traditional with everyone in the room introducing themselves to one another, with ASIL President David Caron in his introduction calling this lunch "the best event of the best week of the year."

(This Cable is Cross-Posted at ASIL Cables) (credit for photo by Hilary Schwab, courtesy of American Society of International Law)

WILIG Seeking Nominations for Officers and Interest in Steering Committee Membership

With sadness, I report that next month Janie Chuang – friend, long-time IntLawGrrl and professor of international law at American University Washington College of Law – is completing her temporary term as Co-Chair of WILIG, the Women in International Law Interest Group of the American Society of International Law. Thus we're looking for a new Co-Chair, who will join current Co-Chair, yours truly, and the WILIG Steering Committee in leading WILIG's activities and endeavors.Additionally, WILIG has decided to create a new officer position of Secretary, who will be responsible for preparing, submitting, and maintaining all official WILIG documents, including the annual budget and report.
WILIG is therefore soliciting nominations and self-nominations for a new Co-Chair and a Secretary. The Co-Chair position is non-renewable for a term of 3 years, and the Secretary position is for a term of 2 years, renewable for a total of up to 6 years. In order to be eligible for either position, the candidate must be a member of WILIG. If you are a member of ASIL, you can easily join WILIG here. And you can join ASIL, signing on with WILIG at the same time, here.
If you are interested in running for either position, please send a brief statement of interest and a resume to WILIG Co-Chairs Janie Chuang (jchuang@wcl.american.edu) and me, Kristine Huskey (khuskey@phrusa.org).
The deadline for submitting nominating statements and resumes is Thursday, March 1, 2012.
At the close of nominations, ASIL will develop a webpage with all statements and resumes, and we will send out an e-mail to all WILIG members with the links to the candidate information page and the voting webpage. Voting will take place online and, for those who have not voted online,
 at the WILIG Luncheon on Thursday, March 29, 2012, during the ASIL Annual Meeting in Washington, D.C.
The WILIG Steering Committee is WILIG’s advisory body and plans WILIG activities and endeavors. This year, some members of the WILIG Steering Committee are stepping down after many years of dedicated service. Additionally, WILIG is adding a new "Law Student Steering Committee Member" position, to be filled by a law student who serves during the time s/he is in law school.
WILIG is seeking statements of interest from WILIG members interested in joining the WILIG Steering Committee, including from any WILIG law student. If you are interested in WILIG Steering Committee membership, please send a brief statement of interest and resume to WILIG Co-Chairs, Janie and me, at the e-mail addresses listed above. Membership decisions will be made by the WILIG Steering Committee.

Many thanks and we hope to see you at the annual meeting WILIG Luncheon on March 29 – when we will be presenting the Prominent Woman in International Law award to Mireille Delmas-Marty (right) (photo credit), our guest speaker, who is Collège de France Professor and an IntLawGrrls contributor!

'Nuff said

(Taking context-optional note of thought-provoking quotes)

At what point does the reduction of individual rights in our country change how we define ourselves?

-- Jonathan Turley, a law professor at George Washington University School of Law, in a Washington Post op-ed that assembles the "mosaic" of reductions of liberties in the United States since the terrorist attacks of September 11, 2001. It is a list familiar to readers, and includes points described in IntLawGrrl Kristine A. Huskey's recent post on Guantánamo. And in a separateWaPo commentary this week, NYU Law's Karen J. Greenberg asked another provocative question:

What would a world without Guantanamo be like?

Imagine.

Go On! Emerging Issues in International Humanitarian Law

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

I am pleased to announce an upcoming symposium being sponsored by my institution, Santa Clara University School of Law, on Emerging Issues in Humanitarian Law. The dates are: February 3-4, 2012. The papers and commentaries will be published in the next issue of the Santa Clara Journal of International Law.
The symposium is premised on the observation that while international humanitarian law (IHL) was once an obscure, technical, and highly specialized area of law, aspects of IHL are today the subject of ongoing policymaking efforts and everyday parlance.
Furthermore, there are dozens of cases proceeding in United States, foreign, and international courts adjudicating IHL treaties and customary rules. This process pre-dated the tragic events of 9-11, but those attacks thrust IHL into a spotlight in which it has remained ever since. Notwithstanding this greater attention to the field, misinformation remains within the press, among government policymakers, and even within the legal profession about when IHL applies and what it dictates. In addition, current events continue to generate calls that the existing framework of IHL is ill-equipped to deal with the challenges of modern armed conflicts.

The goal of this symposium is to focus on emerging issues in IHL where IHL norms are most likely to be subject to evolution. Accordingly, the conference will be organized around four panels dedicated to the topics of:

• The Impact of Advances in Technology on IHL and Vice Versa;
• The Gender Dimensions of IHL;
• The Scope of Detention Authority within IHL; and
• The Interface between IHL and International Human Rights.

The event is co-sponsored by the American Society of International Law.
Speakers and commentators include a number of IntLawGrrls:
Dina Francesca Haynes (New England) (upper left); Kenneth Anderson (American); Johanna Bond (Washington & Lee) (upper right); Geoffrey Corn (S. Texas); Mariano Banos (Department of State); Mark Drumbl (Washington & Lee); David Glazier (Loyola); Oren Gross (Minnesota); Deborah Pearlstein (Cardozo) (left middle); Kristine Huskey (Physicians for Human Rights) (right); Kate Jastram (Berkeley) (below right); Greg McNeal (Pepperdine); Ashley Deeks (Columbia) (left); Abe Sofaer (Stanford); and Richard Wilson (American).
The keynote will be offered by Louise Doswald-Beck (bottom left), a Professor of the Graduate Institute of International Studies and the Geneva Academy of International Humanitarian Law and Human Rights and co-author of the International Committee of the Red Cross's momentous study on customary IHL.
The ICRC's customary international law database is available here. The full symposium schedule is available here.

Guantánamo 10 Years On and the Future of Indefinite Detention

Today, January 11, 2012, marks the tenth year of existence of the detention center at the U.S. Naval Base at Guantánamo Bay, Cuba. Ten years ago, twenty men arrived there and were held in Camp X-Ray, a temporary camp of open-air 6’x8’ cells made of chain link fence. This first group was considered so dangerous they were described by then-Joint Chiefs of Staff, General Richard Myers, as being willing to ''gnaw hydraulic lines in the back of a C-17 to bring it down.''
Within months, hundreds more men arrived blindfolded and in shackles and, at its height, Guantanamo housed 779 men. (Prior IntLawGrrls posts) Over the years, almost 600 men have been released, including most of those first-arrival detainees, without ever being charged or tried with any crime.
Today, 171 men remain imprisoned there, largely cut off from their families and communities, with no hope of ever going home.
Having represented Guantánamo detainees for almost ten years, I feel deep and utter disappointment in writing this blog, as I was hopeful my post last year at this time would be the final say on GTMO anniversaries. There is not enough room here to convey the myriad of legal and policy developments and human events – positive, negative, uplifting and tragic that have occurred over the last ten years. Entire books have been written about the subject. Indeed, you can read about my experiences in my memoir, Justice at Guantánamo: One Woman's Odyssey and Her Crusade for Human Rights (2009) to learn about the first Supreme Court case and the early years at Guantánamo. (prior post)
In reflecting over the last decade, let me quickly highlight some of the salient points:
► First, it is a known fact that many of the men at Guantánamo were tortured and abused. Reports, such as those by the CIA Inspector General and submitted to the US Senate Armed Services Committee confirm not only that these human rights violations occurred but that they were done at the behest of American officials, many in high-level positions in the Bush Administration.
► Second, as mentioned, most of the men who have been through Guantánamo, including those still there, were never charged with any crime. In 2006, Seton Hall Law School produced a revealing report, based on US Department of Defense data, showing that less than 10% were considered to be Al-Qaeda and roughly half of the men had never committed a hostile act toward the United States.

... & other IntLawGrrls also on the move

Many in our IntLawGrrls community are on the move. In addition to mentions here, here, here, and here, we're happy to report other 'Grrls' good news:
► Hélène Ruiz Fabri (left) is the inaugural Dean of the Sorbonne Law School, which gathers the 5 law departments of Université Paris 1. She remains as well a Professor of Public Law in that university's Panthéon Sorbonne law faculty.
►Monika Kalra Varma (right) will begin her new position as Executive Director of the Pro Bono Program of the District of Columbia Bar on September 30. She will be in charge of coordinating efforts of the private bar to make legal representation and advice available to low-income persons, small businesses, and community-based nonprofit organizations in the District.
► Elizabeth Lutes Hillman (left) is the new President of the National Institute of Military Justice (on whose board Beth Van Schaack and yours truly, among others, are honored to serve). She succeeds our colleague and longtime NIMJ President Eugene R. Fidell.. A Professor at the University of California Hastings College of Law and retired Air Force officer, she's aptly suited to lead NIMJ into its 3 decade.
► Kristine A. Huskey (right) is now the Director of the Anti-Torture Program of Physicians for Human Rights. Since mid-July, she's led that NGO's policy and advocacy work related to abuse of persons in U.S. custody, at Guantánamo, Afghanistan, or elsewhere. Long active in GTMO-related litigation, Kristine also is slated to teach a national security course as an Adjunct Professor of Law at Georgetown this fall.
► Luz Estella Nagle (right), Professor of Law at Stetson University College of Law, this year is Co-Chair of the International Committee of the American Bar Association Criminal Justice Section.
► Finally, a belated congratulations to Annecoos Wiersema (right), now completing her 1st year at her (relatively) new home institution, the University of Denver Sturm College of Law, where's she's an Associate Professor.
Heartfelt congratulations to all!

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.)

Network with ASIL

The Women in International Law Interest Group of the American Society of International Law will sponsor a Networking Breakfast at 8 a.m. on July 27 at Tillar House, ASIL's headquarters at 2223 Massachusetts Avenue, N.W., Washington, D.C.
Following breakfast, from 8:30 to 10, panelists will discuss their career paths and offer professional advice and insights for women interested in pursuing careers in international law. WILIG Co-Chairs Kristine A. Huskey and Janie Chuang, both IntLawGrrls, have assembled a great panel of D.C.-based lawyers:
► IntLawGrrls alumna Diane Orentlicher (left), Deputy, War Crimes Office, U.S. Department of State
► Clara Brillembourg, Associate, Foley Hoag LLP
► Andrea Gittleman, Senior Legislative Counsel, Physicians for Human Rights
► Laura Profeta, Chief Counsel of Sovereign Guaranteed Operations in the Inter-American Development Bank
► Anne-Marie Leroy (below right), Senior Vice President and General Counsel, World Bank (photo credit)
A Q&A session and informal networking will conclude the event.
The Networking Breakfast is free to ASIL members; there's a fee for nonmembers. Details and registration here.