Precipitating Politics Around The Revival of Prosecutions in Bangladesh

This is part 3 of a three-part series on the Bangladesh International Crimes Tribunal.  Part 1 (overview) and 2 (deep history) are here and here, respectively.

Fast forward to the present day. Prosecuting local collaborators for crimes committed at Liberation emerged as a central campaign pledge of the Awami League and now-Prime Minister Sheikh Hasina Wajed during the 2008 elections when the Awami League “Grand Alliance” emerged triumphant. The law was not invoked until 2010 when authorities arrested four leading politicians from the rival Islamist political party, Jamaat-e-Islami. Jamaat-e-Islami had been banned from political participation following the 1971 war of independence, and its leaders went into exile in Pakistan. The ban was eventually lifted. The party revived, was mainstreamed, and eventually joined in multiparty alliances with, most prominently, the Bangladesh Nationalist Party (BNP). It is now the principal Islamist political party in Bangladesh and a key opponent to the majority Awami League. The most recent general elections were held on January 5, 2014. Jamaat-e-Islami was barred from participating, and the Bangladesh Nationalist Party (BNP) and other opposition parties chose to boycott the elections. As a result, 154 of 300 seats went uncontested, so Awami League candidates won by default. The rise of the Awami League, and the marginalization of any credible political opposition, has cleared the way for the government to launch targeted prosecutions against key political opponents under the 1973 Act.

Once prosecuting political opponents became policy, Parliament amended the 1973 Act several times to make it operational. The legislation, which mostly incorporates the Nuremberg/Tokyo definitions of the crimes and benefited from the assistance of international law experts, was quite forward leaning for its time in terms of substantive law. By today’s sensibilities, however, the legislation is outdated and does not reflect recent developments in the law occasioned by the work of the ad hoc criminal tribunals.

The real concerns, however, relate to a number of procedural infirmities contained in the statute itself and in amendments to the Constitution that deny procedural protections to individuals detained or prosecuted under the 1973 Act. For example, 1973 amendments to the Constitution protect the Act from legal attack. Notably, Article 47(3) states:

(3) Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.

Article 47A also withdrew certain procedural rights from individuals subject to Article 47(3)—including the right to enjoy the protection of the law, the prohibition of ex post facto prosecutions, the right to a speedy and public trial, and the right to challenge the court’s jurisdiction.

The legislation itself invalidates additional rights, including the right against self-incrimination (the statute provides that defendants shall not be excused from answering any question on the ground that the response will incriminate the suspect). Long pre-trial detentions have led the U.N. Working Group on Arbitrary Detention to declare that several defendants hve been subjected to arbitrary detention in violation of international law, notably the ICCPR. In addition, idiosyncratic Rules of Procedure and Evidence govern the Tribunal, so any protections contained in the normal criminal procedure code, including rights of appeal, are inapplicable. For example, the law imposes an obligation on the Appellate Division of the Supreme Court to dispose of any BICT appeal within 60 days—a tall order given that no interlocutory appeals are allowed. In practice, although the accused ostensibly enjoy the right to counsel of their choice, the Bangladesh government and Bar Association have made it virtually impossible for outside counsel to adequately represent their clients by, among other things, restricting their travel to the country and their presence in interrogations. Several trials—including that of Abdul Kalam Azad, the first case to go to verdict—have proceeded in absentia. A U.S. citizen, Ashrafuzzaman Khan, and a U.K. subject, Chowdhury Mueen-Uddin, have also been sentenced to death in absentia for crimes against humanity. Such trials are not, per se, contrary to international law, but defendants must be given a right to a retrial if and when they are apprehended. No defendant in his right mind would appear voluntarily before a tribunal so stacked against him.

Among other retrograde elements, on February 17, 2013, the International Crimes (Tribunals) (Amendment) Act of 2013 amended the law again to allow for the prosecution of “organizations” for their role in the 1971 War of Liberation. (There is some talk that the law may need to be amended anew to enable the prosecution of “parties” in addition to “organizations” if it is to serve its intended purpose). This baldly political move is aimed directly at Jamaat-e-Islami, notwithstanding that its continuity with its liberation-era predecessor is questionable. After the BICT sentenced Abdul Quadar Mollah, the assistant secretary-general of Jamaat-e-Islami, to life imprisonment for crimes against humanity in February 2013, the Act was further amended to allow the prosecution to appeal a sentence or a verdict of acquittal. The amendments were made retroactive. On the prosecutor’s appeal, the Supreme Court converted Mollah’s sentence from life imprisonment to death, a final sentence that does not admit the right of judicial appeal. Despite calls on December 11, 2013, from U.S. Secretary of State John Kerry and United Nations Secretary General Ban Ki Moon to Sheikh Hasina herself, Mollah became the first BICT defendant to be executed. He was hanged on December 12, 2013 after a last minute stay of execution was lifted, on the eve of the upcoming Victory Day celebrations. Indeed, trials and appeals proceeded at a breakneck pace in 2013, apparently in an effort to achieve results in advance of the January 2014 elections.

The BICT has also been mired in corruption allegations. In December 2012, The Economist broke the story, based upon leaked emails and recorded Skype conversations, that a BICT judge had been seeking outside advice on how to rule from the Brussels-based director of the Bangladesh Centre for Genocide Studies, who was also apparently collaborating with the prosecution. The leaked correspondence suggest that the government was pressuring the judges to issue their judgments more quickly. The judge eventually resigned, but the BICT nonetheless responded with threatened contempt of court charges against The Economist’s journalists. Other journalists and media outlets that have been critical of the BICT have also been hit with contempt charges.

Individually, these infirmities are deeply troubling. Collectively, they fundamentally undermine the fairness of the proceedings, especially given that the death penalty is on the table.

The international community initially supported this effort at historical justice, given the longstanding impunity stemming from the war of independence. Human Rights Watch, for example, called the trials an important and long overdue step to achieve justice for victims. The United Nations Development Programme (UNDP) offered assistance, and the European Union passed resolutions supporting the trials. However, this support soon soured when it was clear that the process had been corrupted and was more political than legal.

The United States’ position toward the BICT has been a guarded one. While acknowledging the need to address the atrocities committed during the war, the United States has also called for proceedings to be free, fair, transparent, and consistent with international and domestic due process standards. The United States Ambassador-at-Large for War Crimes Issues, Stephen Rapp (my former boss), has visited Bangladesh five times (most recently in August 2014) in an effort to bring the proceedings better into line with international standards. Before the trials began, he wrote an extensive analysis of the original legislation, which was later leaked to the press, setting forth his concerns and suggestions for improvements. He was later criticized for offering his views, even though they had been solicited by Bangladesh. Some of these suggestions—including the recognition of res judicata and double jeopardy, the right to a fair and public hearing with counsel of the defendant’s choice, placing the burden of proof on the prosecution, and establishing a system of witness protection—were at least partially implemented. Others—having to do with interlocutory appeals, interrogation rights, disclosure obligations on the prosecution, and enabling the participation of foreign lawyers in court—were disregarded. Now that proceedings are fully underway, the prospects of genuine legal reform are dim. The goal now seems to be to keep the defendants alive.

And What of the Birangonas?

The suffering of Bangladesh’s rape victims continues. Indeed, these women were twice made the victim. The first breach of their rights and dignity occurred when they were subjected to mass rape on a staggering scale. Although we will never have accurate numbers, all accounts suggest that tens of thousands of women were systematically kidnapped, raped, and mutilated.  Many did not survive their ordeal.  Those who did suffered a second kind of assault in the aftermath of the war. Rather than being treated with compassion, given medical and psychological assistance, receiving reparations, or getting access to meaningful justice, many survivors were instead silenced, ostracized by their families, and treated as pariahs in their own communities. The only medical services on offer were makeshift abortion clinics staffed by experts who were flown in to conduct late-term abortions. Many “war babies” who were not aborted were put up for international adoption. For many women, the only tangible recognition they received for what they had suffered were the plaques eventually bestowed on them. Although labeled “Birangonas” (war heroines), this supposed honorific turned out to be little more than a cruel hypocrisy. Many survivors continue to live in poverty and shame.

The propaganda value of violence against women has long been recognized. There is now the risk that these women—who for years have been hidden away, ignored, ostracized or worse—will be injured a third time when their legitimate claims for justice will be used to justify a deeply illegitimate process.  They will be trotted out in support of the trials under the illusion that their stories matter. Once the victims have played their part in justifying a flawed process, they will be relegated back to the shadows once again. As criticism mounts about the BICT, Bangladesh’s Birangonas will come to realize that offering them the opportunity to achieve justice for what befell them was never the goal.

The BICT: Great Expectations Gone Awry

This is part 2 of a 3-part series on the Bangladesh International Crimes Tribunal (BICT).  Part 1 is here.  Part 3, available here, addresses the contemporary proceedings and the expectations of victims.

It was not inevitable that the BICT would backfire.  In fact, its necessity was pressing and its origins honorable. By way of background…

The August 1947 Partition of India produced the Islamic Republic of Pakistan, a nation divided at its birth by more than 2,000 miles of Indian terrain. Governing two far-flung territories—then called West and East Pakistan—with little if anything in common besides a fealty to Islam proved impossible, especially with political and other power initially concentrated in the West. Things came to a head when national elections held in December 1970 resulted in victory for the East Pakistani Awami League, headed by Sheik Mujibur Rahman, deemed the Father of the Nation (and—as is typical of the sub-continent’s dynastic politics—also the father of the current Prime Minister). The government then in place in East Pakistan refused to relinquish power. To suppress the burgeoning Bengali nationalist movement, authorities in West Pakistan launched Operation Searchlight in March 1971 with the secret airlifting of members of the Pakistani Army into East Pakistan, the imposition of a curfew, the blocking of all forms of communication, and the arrest of the Awami League leadership. Working with local collaborators (razakar)—some of whom were affiliated with the anti-independence Jamaat-e-Islami party—Pakistani forces unleashed a campaign of violence that targeted the intelligentsia, civic leaders, students, and Hindu communities. The singling out of Bengali citizens, particularly in the eastern zones, gave rise to charges of genocideone of the first invocations of the term since the promulgation of the Genocide Convention following World War II. An anguished contemporaneous cable from the U.S. embassy entitled “Selective Genocide” admitted that U.S. personnel were rendered “mute and horrified witnesses to a reign of terror by the Pak military” and begged for the ability to confront Pakistan over its actions.

What was supposed to be a quick pacification exercise dragged on for months, with all the attendant harm to the civilian population. Indeed, during the 9-month Operation, the invading army and their collaborators perpetrated a mind-boggling array of atrocities. Notably, Operation Searchlight unleashed one of the largest instances of wartime rape ever recorded: it is estimated that between 200,000-400,000 women and girls were raped as well as subjected to sexual enslavement, mutilation, and forced impregnation. As is typical, there are no firm numbers of those killed either, but estimates range from 300,000 to 2 million. It is known that the Operation generated almost 10 million refugees—sometimes upwards of 50,000 per day—who fled to neighboring India, which opened its borders to provide refuge.

Spurred by this influx of refugees, and the targeting of individuals of the Hindu faith, India eventually intervened on East Pakistan’s behalf in December 1971 under the leadership of Prime Minister Indira Gandhi—a frequently cited example of post-Charter humanitarian intervention, although India relied on a self-defense rationale as well. Fighting alongside East Pakistani “freedom fighters” (mukti bahini), the Indian Army helped to defeat the Pakistani troops after less than two weeks of fighting (one of the shortest international armed conflicts on record). The occupation army surrendered on December 16, 1971, now known in Bangladesh as “Victory Day.” This left upwards of 100,000 prisoners of war—the most since World War II—in Indian custody. India detained 195 who were deemed the most responsible for the atrocities; the rest were repatriated at the end of the war.

With an eye toward prosecuting those who had aided and abetted the Pakistani forces, the Bangladesh Collaborators (Special Tribunals) Order came into force in 1972 by Presidential Decree. The next year, the Parliament promulgated the International Crimes (Tribunals) Act (the 1973 Act) “to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law.” Sheikh Rahman, the primary political force behind the independence movement, quite presciently contemplated local prosecutions of East Pakistani citizens and an international tribunal to prosecute POWs. By Presidential Order No. 16 in February 1973 (the Bangladesh National Liberation Struggle (Indemnity) Order), however, the liberating forces were given immunity from prosecution. In November 1973, the government declared a general pardon and amnesty that applied to low-level offenders, but not to individuals accused of rape, murder or genocide.

Meanwhile, Pakistan instituted suit against India before the International Court of Justice over the fate of its 195 citizens, arguing that it enjoyed exclusive jurisdiction for crimes committed on the territory of then-Pakistan by virtue of Article 6 of the Genocide Convention. (That provision obliges states parties to exercise territorial jurisdiction over genocide, but does not preclude resort to other bases of jurisdiction). Pakistan also held thousands of Bengalis resident in West Pakistan hostage in retaliation for the threat to prosecute the POWs.

On April 9, 1974, India, Bangladesh, and Pakistan entered into a tripartite agreement for the normalization of relations on the sub-continent. The agreement ensured the recognition of Bangladesh, enabled a massive three-way repatriation of civilians, and embodied a decision to forgo trials in a spirit of clemency, reconciliation, and forgiveness. The ICJ case, which had been postponed several times in order to enable the parties to undertake negotiations, was dropped as part of the comprehensive settlement between the two nations. Eventually, the 195 POWs were returned to Pakistan following its assurances that they would be prosecuted at home.

For its part, Pakistan constituted the Hamoodur Rahman Commission, which was mandated to undertake “a full and complete account of the circumstances surrounding the atrocities and the 1971 war.” Although it dramatically downplayed the prevailing statistics on rape and murder, the final report was critical of the Pakistani military and was not published. Indeed, apparently 11 of the 12 copies were destroyed. The surviving copy was eventually leaked to the press and then fully declassified in 2000. In the end, no one in Pakistan was held accountable for the atrocities in East Pakistan in any meaningful way.

A number of cases went forward in Bangladesh under the 1972 Presidential Order. Many convictions were ultimately pardoned, however. In 1975, Sheikh Rahman was assassinated, which scuttled these efforts. Later that year, the 1972 legislation, but not the 1973 Act, was repealed. It was thus left to Rahman’s daughter—Prime Minister Sheikh Hasina Wajed—to complete this aspect of her father’s legacy.

Part 3 of this series will fast forward to the present time.

The Bangladesh International Crimes Tribunal (BICT): Complementarity Gone Bad

International courts cannot handle all possible international crimes prosecutions; as such, it is incumbent upon national systems to carry much of the burden. Indeed, the International Criminal Court is expressly complementary; it will assert jurisdiction only when there is no domestic court that is willing or able to bring charges. Although the ad hoc criminal tribunals enjoyed primacy over domestic systems due to their Security Council provenance, the relationship is still a partnership, as evidenced by the high degree of information sharing between the tribunals and their domestic counterparts, the provision of technical assistance and training to local actors, and the ICTY’s Rules-of-the-Road project. Rule 11bis was added to the Rules of Procedure and Evidence to enable the ad hoc tribunals to refer low-level cases to a domestic system with jurisdiction as part of the tribunals’ Security Council-mandated Completion Strategies. Putting to the side the imperatives of capacity, efficiency and cost-effectiveness, many experts express a preference for local justice for more deontological reasons. The theory is that judicial processes convened closer to the events in question will enjoy greater legitimacy within impacted regions, help instantiate the rule of law, and enable more meaningful access and participation for victims and witnesses.

Efforts at local justice can backfire, of course, as exemplified by the work of the Bangladesh International Crimes Tribunal (BICT). The BICT is a purely domestic effort proceeding under a 1973 statute defining international crimes within Bangladeshi law. Tracing its roots to the War of Liberation that gave rise to modern-day Bangladesh, the BICT is dedicated to prosecuting alleged collaborators of the Pakistani Army (then West Pakistan) for atrocities committed when East Pakistan (now Bangladesh) sought to secede in March 1971. These events cry out for justice; however, the fundamentally unfair proceedings underway before the BICT pervert the values and goals of transitional justice, insult the victims who deserve a more legitimate accountability process, and threaten to leave a lasting stain on both the Bangladeshi legal system and the system of international justice writ large. Many of the defendants may in fact be guilty of the crimes of which they are charged. But because the proceedings are so profoundly unfair, and the defendants are subject to the death penalty, we will never know for certain. Once hailed as a courageous and important exercise in historical justice, the BICT has become an object lesson for how international criminal law can be manipulated for political ends.

The BICT has drawn sharp criticism for a whole host of reasons, not the least of which is that its proceedings are entirely one-sided. So far, indictments have been leveled against eleven defendants representing the senior leadership of two opposition political parties (nine from Jamaat-e-Islami and two from the Bangladesh Nationalist Party (BNP))—both rivals of the ascendant Awami League. Not a single so-called freedom fighter (mukti bahani) or Pakistani national has been prosecuted, suggesting that the BICT is just a tool within a byzantine political vendetta rather than a genuine, and long-overdue, effort at historical justice. Although Bangladesh has ratified the International Covenant on Civil and Political Rights (in 2000), and was the first, and one of the few, Asian nations to ratify the ICC Statute (on March 23, 2010), many aspects of proceedings run afoul of the litany of procedural protections owed to criminal defendants under human rights law, most notably Article 14 of the ICCPR. Some of this unfairness can be traced to the very genetic code of the BICT’s legal framework; the rest has is attributable to the practice of the tribunal.

Due in part to their perceived unfairness and one-sidedness, the trials have become a dangerously polarizing force in Bangladesh. The verdicts have prompted mass demonstrations, street violence, and destructive hartals (strikes), which have brought Dhaka to a veritable standstill, destroyed public and private party, and led to the deaths of dozens of protesters at the hands of the Bangladeshi security forces. The imposition of the death penalty brings supporters of Jamaat-e-Islami to the streets; a mere life sentence, by contrast, infuriates backers of the Awami League and prompts competing protests and petition drives calling for the application of the death penalty. Many observers breathed a sigh of relief when the Supreme Court on September 17, 2014, commuted the sentence from death to life imprisonment of a leading Islamist politician and cleric, Delwar Hossain Sayedee. Nonetheless, the move sparked street protests, expressions of disappointment from members of the government, and calls for the Constitution to be amended yet again to remove the possibility of pardon. This trial was marked by heightened controversy, particularly when a key defense witness (who had originally agreed to testify for the prosecution) was kidnapped on the courtroom steps by plain-clothed agents as he arrived to testify. (He was later forcibly transported to India where he was promptly arrested for immigration violations). The independence of the judiciary—such as it was—is even more in jeopardy since the 16th Amendment to the Constitution—finalized on September 22, 2014—will empower Parliament to impeach Supreme Court judges for “incapability and misconduct.”

Notwithstanding these defects, the proceedings are popular among a number of victim groups, who have been denied any meaningful justice since the War of Liberation. In particular, the trials have given voice to the so-called Birangonas (“war heroines”), who are on record demanding the mass application of the death penalty—and worse—to BICT defendants. The Birangonas suffered unimaginably during the War of Liberation, and they deserve their day in court. They also deserve a legitimate, fair, and impartial judicial process that will stand the test of time, rather than the facsimile of justice being peddled by the BICT: justice in the service of politics and the demands of the street.

In August, I participated in a session at the San Francisco Bar Association (video here) on the BICT with Toby Cadman, a British barrister doing a yeoman’s job of representing defendants before the BICT. The remainder of this series of posts will provide a backgrounder on the BICT proceedings and the substance of our remarks.  Part 2 provides a deep history of the BICT; Part 3 addresses the BICT’s procedural infirmities.  The BICT can be followed more closely here and here. The best academic treatment of the BICT’s history and jurisdiction is by Suzannah Linton of Bangor University.

IHL Dialogs: Prosecutors’ International Criminal Law Round-Up

I had the pleasure of attending the 2014 IHL Dialogs last week in lovely Chautauqua, NY.  The event—co-hosted by IntLawGrrls, the Robert J. Jackson Center, the American Bar Association, and the American Society of International Law (among others)—is an annual gathering of international criminal law professionals, government officials, and academics in a relaxed setting to take stock of the field, evaluate recent developments, and think about how the international justice system will and should develop in the future.  We’ve covered prior Dialogs in the past on these pages (see here and here).

The Gambia Trialprosecutors IMG_6580

The event began with a fascinating discussion at the Robert H. Jackson Center about one of the first efforts at hybrid justice: the 1981 trials of would-be coup leaders in the Gambia.  The coup, staged by local actors, was rumored to be part of a Pan-African Marxist conspiracy spearheaded by Muammar Gaddafi.  In response, the Gambia invoked a mutual defense pact with Senegal, whose troops helped to quickly oust the rebels.  Thousands of people were detained in connection with the uprising. Fearing that key members of the government and judiciary had been involved in the attempt, the Gambia established special tribunals staffed by lawyers and judges from the British Commonwealth to assess the legality of the detentions and prosecute those who were deemed most responsible.  All told, 45 people were tried in 4 years.

The conversation at the Jackson Center involved Hassan Jallow (ICTR Chief Prosecutor) and Fatou Bensouda (ICC Chief Prosecutor), who were young Gambian professionals working in the judicial system at the time, and Sir Desmond Da Silva (United Kingdom) who, as an expert on the 1351 English Treason Act, was seconded to help with the trial. Jallow covers the event in more detail in his recently-published memoire, Journey for Justice.

Ambassador Tiina Intelmann on the Worrisome State of International Justice

Ambassador Tiina Intelmann (Estonia), President of the ICC’s Assembly of States Parties (ASP), gave a sobering keynote address at the Chautauqua Institution about the state of international justice.  (The YouTube video is here). Intelmann observed that the security situation in the world changed dramatically over the summer, suggesting that Francis Fukuyama was prematurely optimistic in his essay, The End of History.  She noted that the ICC was established during the peek of global optimism and unanimity about the prospects of international justice, but surmised that such an effort would fail if it were attempted today.  Although the number of cases before the Court (21), the range of situations being referred to the Court (8), and the number of requests for the Court to get involved in conflicted areas around the world (1000s) have reached unprecedented levels, support for the Court is waning in some circles.  This is true most notably among certain members of the African Union, who have indicated that maintaining cooperation and a positive attitude toward the Court mayTiina IMG_6507 generate economic and political problems.  She cautioned that this ambivalence is not limited to Africa, however.  Even though one European country has annexed part of another European country, some European states—including long-time supporters of the Court and of international law—are “remaining neutral” and raising concerns about the local impact of the sanctions that have been imposed.   She observed that when complicated situations come closer to home, states start thinking more parochially about their own national interests.

Ambassador Intelmann also argued that while Article 27 of the ICC Statute—withholding immunities traditionally enjoyed by heads of state—was a major achievement in Rome, the Kenya and Darfur situations reveal that prosecuting sitting heads of state is not something the international community is very good at.  She lamented the fact that the ASP, which was designed as an administrative body to deal with budgetary and other more quotidien issues, turned itself into a political body at its last session when considering proposals to undo Article 27 and limit the Court’s ability to prosecute heads of state.  These proposals remain on the table and will likely appear on the ASP’s agenda again soon.

Prosecutors’ Roundup

A highlight of the IHL Dialogs is always the prosecutors’ roundup, which is followed by a year-in-review offered by a leading ICL academic.  Professor and Dean Valerie Oosterveld of Western Law in Ontario, Canada, delivered the 2014 ICL Year in Review.  The material below is a composite of several panels convened over the course of the Dialogs that covers some highlights of the year’s events.   Continue reading

Zainab Bangura, 2014 Katherine B. Fite Lecture

I was honored last week to introduce this year’s Katherine B. Fite lecture at the annual IHL Dialogs hosted by the lovely Chautauqua Institution (the 2014 program is here). We’ve covered prior Dialogs on these pages (see here and here).  Fite (1905-1989) was a career State Department lawyer. Among her many achievements, she worked in London right after World War II on detail from the State Department, aiding Justice Robert H. Jackson and others in negotiating and drafting the Charter of the International Military Tribunal. She then decamped to Nuremberg where she helped prepare the case against the indicted organizations. The Jackson Center’s John Q. Barrett and IntLawGrrl founder Diane Marie Amann have written wonderful biographical notes about Fite. (Diane’s talk on Fite at a previous IHL Dialog is available here).  This lecture in Fite’s honor has become a featured event at the IHL Dialogs. In choosing each year’s Fite lecture recipient, a committee of contributors to IntLawGrrls strives to honor trail-blazing women who embody Fite’s spirit, commitment to justice, brilliance, and independence.  Prior recipients include Diane Amann, Leila Sadat, and Karima Bennoune.

This year’s Fite speaker, Ms. Zainab Bangura—the United Nations Secretary General’s Special Representative on Sexual Violence in Conflict, embodies Fite’s signature qualities.  (The full text of Bangura’s speech is available here).  Ms. Bangura grew up in the heartland of Sierra Leone, the child of a Muslim cleric and a mother who insisted that her daughter enjoy an education even though she herself could not read or write. Although she originally pursued a career in the insurance industry, the commencement of the war in Sierra Leone inspired her to focus on advocating for peace and democracy. SRSG Bangura thus began her career in public service as founder of

  • the Campaign for Good Governance (CGG) and
  • the country’s first non-partisan women’s rights group: Women Organized for a Morally Enlightened Nation (W.O.M.E.N.).

In 1996, the CGG helped to catalyze the first democratic elections in Sierra Leone after 25 years of single-party rule.

During the Sierra Leone civil war (1991-2002), Ms. Bangura spoke out against the atrocities being committed on all sides. For her acts of denunciation, she was directly threatened with rape and murder. But she refused to be intimidated. Following the war, Ms. Bangura became involved in efforts to prosecute sexual violence as crimes against humanity and war crimes. Given her long experience as a civil society and women’s rights activist, and over the objections of defense counsel, Ms. Bangura was certified by the SCSL as an expert on violence against women and was called to testify about the various manifestations of sexual violence in the armed conflict in Sierra Leone. She wrote a brilliant and sophisticated expert report, distinguishing between Continue reading

SRSG Bangura “Sexual Violence: A Crime of War”

Below is the full text of the lecture delivered by the United Nations Secretary General’s Special Representative on Sexual Violence in Conflict, Ms. Zainab Bangura, in honor of Katherine B. Fite delivered at the 2014 IHL Dialogs at the Chautauqua Institution (25 August 2014):

Distinguished guests, colleagues, ladies and gentlemen,

Good evening and thank you very much for welcoming me here tonight. I am deeply gratified to be here with so many professionals who have dedicated their careers to helping survivors of atrocities, such as sexual violence, on their long road toward justice.

I am proud to address you this evening in the name of Katherine Fite. I am inspired by the depth of her courage and commitment to justice at the Nuremberg Tribunal. At a time when the world was reeling from the horrors of the Second World War, Fite gathered evidence and prepared arguments to help bring Nazi leaders to trial. The Nuremberg Trials, while controversial at the time, marked an important step in international law, and it is due in large part to Fite’s contribution – and in furtherance of her vision – that we are gathered here tonight.

The Nuremberg Trials symbolized a paradigm shift in how the world viewed, and punished, war crimes and crimes against humanity. They laid the foundations for a permanent International Criminal Court and set a powerful precedent for dealing with genocide and other crimes that shock the collective conscience.

The Nuremberg Tribunal attempted to address the horrors of the Holocaust, including crimes against peace, war crimes and crimes against humanity. Despite its historic achievements, we must acknowledge that the issue of sexual violence was sidelined. Given what we now know about the scale of rape and sexual slavery during the Second War World, it is a conspicuous and tragic absence.

After the Nuremberg Trials ended, many people wanted to believe that justice had been delivered. They wanted to believe that at last, the victims of the Holocaust were named and counted. They wanted to focus on reconstruction efforts and reestablish a sense of normalcy. In addition, the perception that rape was a “private” matter and a second-class crime committed primarily against second-class citizens, namely women and girls, meant that it was easily overshadowed by other horrors of the war. As a result, survivors of sexual violence who tried to tell their stories were met largely with war weariness and indifference.

Then in 2000, researchers at the United States Holocaust Memorial Museum began documenting all of the ghettos, slave labor camps, concentration camps and killing centers operated by the Nazis. In 2013, they released findings that shocked Holocaust scholars, as well as the global community.

Based on post-war estimates, the researchers expected to find about 7,000 Nazi camps and ghettos, but the numbers kept climbing until the researchers identified some 42,500 sites, including at least 500 brothels where women were held as sex slaves. They also uncovered thousands of sites where pregnant women were routinely forced to undergo abortions, or their children were killed after birth.

What obscured these shocking crimes? Continue reading

Tempest over a Temple 2

The International Court of Justice recently issued a final judgment in The Case Concerning The Temple Of Preah Vihear, Request For Interpretation Of The Judgment Of 15 June 1962 (Cambodia v. Thailand) (the full case docket is here).  The judgment confirms (again) that the contested temple is on the territory of Cambodia, although leaves open the question of the territory around the temple.  Newspapers initially reported that both countries were satisfied with the ruling; now, it seems that Thailand wants to “negotiate further on the issue with Cambodia.”

Although not of the global importance as the situation in Syria or Iran, this case can be counted as a provisional win for the ICJ and for the processes of international dispute resolution.  As we’ve discussed in the past (here) the origins of the dispute can be traced to Thai domestic politics more than anything else.  The ICJ offered a neutral forum where the parties could outsource the dispute, give everyone involved some breathing room, and allow for the political situation in Thailand to normalize.  It remains to be seen whether nationalist forces within Thailand will accept the ruling, or insist that the government repudiate it.

Round 1 at the International Court of Justice

By way of background, the ICJ first took up the case upon a 1959 application by Cambodia after Thai forces occupied the temple area in 1954.  In that earlier opinion, issued in June 1962, the Court had declared that

the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia

notwithstanding that the temple, being on an escarpment, is geographically more accessible from Thailand and on the Thai side of a natural watershed that otherwise demarcates the border between the two countries.  Interestingly, the Court did not consider Cambodia’s cultural claims to the 11th century temple, which was built by the same Khmer royalty who are responsible for the spectacular Angkor Wat temple complexes.

The ruling was premised in part on interpretations of French maps, drawn up in 1907 by the Franco-Siamese Mixed Commission, which placed the territory in Cambodia.  Thailand had helped generate these maps, and subsequently used them for its own purposes until its 1954 occupation of the area.  Because Thailand had originally relied on the 1907 maps, suggesting an acceptance of their contents, international lawyers normally cite the ICJ’s 1962 judgment for the principle of estoppel, which the court identified as a general principle of law as contemplated by Article 38(1)(c) of its statute.

UNESCO Enters the Fray

Preah Vihear TempleThailand withdrew from the temple complex following the 1962 judgment.  Cambodia generally enjoyed uncontested sovereignty over the temple until recently.  In 2007, Cambodia successfully requested that UNESCO list Preah Vihear as a World Heritage Site, one of two in Cambodia.  The map Cambodia provided to UNESCO included part of the promontory on the Cambodian side of the border.  Nationalist political parties in Thailand protested the move, leading to Thailand’s withdrawal from both the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage and the World Heritage Committee.  These protests were part of the unrest that led to the 2008 Thai political crisis.  At the same time, Thai and Cambodian forces clashed along the borders, displacing thousands of civilians and requiring the temple to be closed to tourism.  In February 2011, Cambodia brought the conflict to the attention of the U.N. Security Council, which called for a permanent ceasefire to be established between the two parties and expressed its support for the efforts of the Association of Southeast Asian Nations (ASEAN) to find a solution.

Round 2 at the International Court of Justice

In April 2011, Cambodia requested that the ICJ, pursuant to Article 60 of its statute, interpret its original 1962 judgment.  Thailand advanced the argument that the original ICJ opinion related only to the temple itself (and the immediate vicinity), and not to the entire area surrounding it, where the recent clashes have occurred. Similarly, it argued that the Court did not delineate the entire frontier between the countries, which remains contested.  Cambodia countered that by determining that the temple falls within Cambodian sovereign territory, the ICJ by implication had determined the border between the two countries, at least with regard to the temple vicinity. Thai incursions, it contended, thus are akin to violations of Article 2(4) of the U.N. Charter. On the strength of the original ICJ opinion, Cambodia has argued that Thailand remains under a continuing and general duty – rather than a mere instantaneous duty applicable only in 1962 – to withdraw its troops from the area and to respect the integrity of Cambodian territory.

On July 18, 2011, the International Court of Justice ordered provisional measures in the Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand).  Made pursuant to Article 41 of the ICJ Statute, provisional measures are akin to the issuance of a preliminary injunction in U.S. litigation practice.  The measures were premised on findings that:

  • the rights asserted by Cambodia were at least plausible;
  • the rights from which the request for provisional measures derive from the earlier judgment;
  • a link exists between the alleged rights and the provisional measures sought; and
  • irreparable prejudice could be caused to those rights.

Thus the ICJ ordered, inter alia, that

all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia.

The Court then defined this zone with reference to particular coordinates. In addition, the parties were ordered to continue to cooperate with ASEAN and to allow observers to have access to the provisional demilitarized zone.

Round 3 at the International Court of Justice

The Court unanimously ruled this week on the merits of the dispute.  In keeping with its earlier provision measures, the Court held that the 1962 judgment only addressed a dispute regarding territorial sovereignty over the temple and area on which it is located; it was not delimiting the entire frontier or assigning sovereignty over the entire escarpment or nearby geographic features.  Nor did it indicate where Thai troops should withdraw to; rather, it simply indicated that they should withdraw from the temple area.

It remains to be seen whether nationalist forces within Thailand will accept the ruling, or insist that the government repudiate it.  There are apparently plans afoot to jointly develop the area.  Having been to Cambodia dozens of time, I still have yet to see this architectural and historical marvel, which has been generally off limits to tourists.  Let’s hope these moderate impulses prevail…