In 2010, the government resumed the post war justice out of a commitment to end the culture of denial and impunity. It was assumed that - many (if not all) of the perpetrators - will be brought to justice. There was an audacity of hope, 'justice might be seen to be done'. What we see in reality - after 8 years of the beginning, the prosecution and international crimes tribunal succeed in completing only 29 cases. So nothing stops the curiosity, whether achievement does resonance repeated high sounding promise of the government! Whether the unusual delay is calculated 'go slow' strategy or there is any 'loophole in legal strategy' impeding expected motion.
In realising the 'promise', whether more tribunal should be constituted and prosecution should be revitalised - these are all policy decisions which could be addressed by the government only. However, the academic view is that if the prosecution alters its legal strategy and facilitate 'approver's testimony' and 'guilty plea' by the offender, disposal time will be minimal.
Tendering pardon to approver
On 24 December 2017, when accused Abdul Latif filed an application before the tribunal seeking permission to be an approver to give testimony, many appreciated the maturity of the justice process (even if prosecution's role in convincing the accused was not clear). When offences are committed by more than one offender, proving each and every charge against each and every defender becomes herculean task as the process involves extended time and resources. To accelerate the trial and saving resources, the tribunal may, on condition of tendering pardon, secure testimony from one of the accomplices under section 15 of the International Crimes (Tribunals) Act 1973. Clemency is tendered to secure testimony against other co-accused when an application is made by any accused or prosecution face difficulty in gathering evidence to bring home the charge against perpetrators. Accomplice testimony can form the basis of conviction if it is thought reliable as a whole being intrinsically natural and corroborated by independent evidence, either direct or circumstantial connecting the accused with the crime.
In a trial before the tribunal, the prosecution brings formal charge(s) against the accused. As per section 10 of the Act, at a trial the charges are read out first and tribunal then asks each accused whether he pleads guilty. If the accused pleads guilty, tribunal can record the admission, and may in its discretion, convict him thereon. In doing so, tribunal must be satisfied that the plea is voluntary, informed and unequivocal. A successful plea bargaining can end the trial in two or three hearing. It is an established norm of criminal justice process, recognised and employed by all national and international criminal forums including ICC.
By December 2017, of the 29 cases adjudged by tribunal, only seven have been finalised after completion of appeal and review from the Appellate Division of the Supreme Court. The minimal time required for finality of a case is 24 months (Abdul Quader Mollah) whereas maximum time period is 70 months (Delowar Hossain Sayeedi) and per case average disposal time is around 45 months. So, the time required in full-length adversarial adjudication is a hindrance to justice and could be avoided by encouraging plea bargaining.
In plea bargaining, to make the accused admitting the guilt is often critical. Instances of harsh punishment inflicted by tribunal effectively demoralise the accused from admitting guilt. To expedite the trial process 'guilty plea' coupled with 'apologies' could be encouraged by offering 'minimal conviction' to offenders. Post war justice around the globe provide option to acknowledge guilt either as plea bargaining or as 'truth and reconciliation'. Even though guilty plea offers minimal conviction, justice can still be served in the view that perpetrators will face social stigma and ramification for their evil deeds.
In Prosecutor v. Ahmad Al Faqi Al Mahdi (ICC-01/12-01/15) case, on 18 September 2015, the ICC Pre-Trial Chamber, issued warrant of arrest against Mr. Al Mahdi for war crimes of intentionally directing attacks against historic monuments and buildings dedicated to religion, including nine mausoleums and one mosque in Timbuktu, Mali. He surrendered to ICC and on 1 March 2016, during charge hearing intended to admit guilt.
Accordingly, the prosecution was allowed three hours to present its case and a maximum of nine hours for examination of its three witnesses. The counsel of victims was given one hour to present the victims' views and concerns and the defense had one hour and a half to present its submissions. The trial took place on 22-24 August 2016 and on 27 September 2016, the Trial Chamber unanimously found Mr. Al Mahdi guilty. A genuine 'apology' by Al Mahdi was followed by minimal conviction of 9 years imprisonment and he was held responsible for 2.7 million euros in expenses for individual and collective reparations. Here, plea bargaining, makes the case less confrontational, helps saving resources of parties and becomes mutually beneficial - as defender meet minimal conviction and victims get reparations.
The options of guilty plea and approver's testimony even though accommodated in the Act 1973, remain unexplored till now. Such options could transform prolonged 'confrontational trial' to 'collaborative justice'. By tendering pardon to one of the accomplices, the tribunal may procure his evidence to prove criminality of other offenders. Guilty plea by the accused permits the tribunal to award conviction without pursuing detail testimony of all witnesses.
As the post war justice initiative is running against time, there is an urgency for speedy disposal. Guilty plea and clemency to approver could be instrumental in bringing a large number of perpetrators to justice in shortest possible time. Moreover, plea bargaining effectively minimises harshness of the punishment as there is a need to lure the offender to admit the guilt by offering minimal conviction. Therefore, these two legal avenues, if explored, in a collaborative manner, will be instrumental in symbolising justice even though in exchange of minimal conviction.
The writer is Assistant Professor in Law, Jahangirnagar University.