Law Opinion
ICTA 1973 and its international standards
Professor M Rafiqul Islam
(…from previous issue)
Liability regime: The liability regime is based on “individual responsibility” in that any of the designated crimes committed by a group of persons would entail individual liability for each person of that group as if each of them individually has committed the crime. Any commanding or superior officer is guilty of committing any of these crimes if he/she is involved in (a) ordering, permitting, acquiescing, participating, or planning and preparing in the commission of any of these crimes, and (b) failing to discharge duty to maintain discipline, control and supervise the actions of persons under command or subordinates committing any of these crimes, or to prevent the commission of such crimes by taking necessary measures (Act ss3:2 and 4). The official position of the accused or acting under domestic law and/or superior order cannot be pleaded as a defence to exonerate responsibility and mitigate punishment for the crimes. Superior orders may be a mitigating factor for punishment only in circumstances where “the Tribunal deems that justice so requires” (Act s5).
This jurisdiction of the Tribunal based on individual criminal responsibility is a widely recognised and judicially endorsed principle of international criminal justice system. The ICC Statute attributes criminal responsibility to individuals for committing any designated international crimes and is liable to punishment under its jurisdiction (Arts 12 & 25). The Nuremberg Tribunal observed that “crimes against international law are committed by men … and only by punishing individuals who commit such crimes can the provisions of international law be enforced” (1947 AJIL v. 41, p. 172). In its Nuremberg principles, the ILC stated that an individual who committed an international law crime was responsible for it and liable to punishment and five of the seven Nuremberg principles deal with individual criminal responsibility (GA Res 177(II) 1947). Article 4 of the 1948 Genocide Convention holds persons individually accountable if they commit genocide or other similar acts regardless of whether they are rulers, public officials, or private individuals. Individual criminal responsibility regime is found in the four 1949 Geneva Conventions, which is reflected in the Statutes of the ICTY and ICTR. The ICTY (Arts 2 & 3) and ICTR (Art 4) Statutes have mandated these tribunals to exercise jurisdiction over individuals indicted for grave breaches of humanitarian laws of war. This responsibility has further been reinforced in the ICTY (Art Article 7:1&3) and ICTR (Art 6:1&3) Statutes. In its judgment of 14 February 2002 in the Case Concerning the Arrest Warrant of 11 April 2000 (Congo v Belgium), the International Court of Justice held that even an incumbent Minister for Foreign Affairs is responsible for criminal acts and that his/her immunity does not mean impunity from his/her individual responsibility. So the individual criminal responsibility regime of the 1973 Act is consistent with international criminal law.
Investigation and prosecution: The government is mandated to appoint one or more chief prosecutors or prosecutors to conduct the prosecution before the Tribunal. It may establish an agency to investigate the designated crimes. A prosecutor is competent to act as an investigation officer subject to investigation rules. He/she shall have the power to order in writing requiring the attendance before him/her for oral examination of any person apparently having knowledge of the circumstances of the case. Such person must comply with such order, answer all questions and not be excused from answering any question on the pretext that the answer may criminate or expose him/her to a penalty. This principle of “no excuse from answering any question” applies to all witnesses before the Tribunal. Such answer cannot lead any witness to arrest or prosecution or be proved against him/her in criminal proceeding. The designated crimes are cognizable, non-compoundable, and non-bailable. The proceedings commence upon the submission by the prosecution of formal charges of the designated crimes committed by the accused individually. The Tribunal will set a date for the trial of the accused person. The prosecution must submit, three weeks prior to the trial commencement, a list of witnesses, its recorded statements, and other documents that it will rely upon in establishing the charges. The prosecution may call additional witnesses or tender further evidence with the approval of the Tribunal and notification to the defence. The defence is required to submit at the time of the trial commencement its list of witnesses and documents that it intends to rely upon in the trial (ss7, 8 & 18 and Rules chapters II & III)). These provisions of the 1973 Act bear similarity with the corresponding provisions of the ICTY and ICTR Statutes: ICTY Art 16 and ICTR Art 15: the prosecutor; ICTY Art 18 and ICTR Art 17: investigation and preparation of indictment.
(to be continued...)
The writer is professor of Law, Macquarie University, Sydney, Australia.
