‘Target individuals, not party’

Rapp, on his fifth visit to Dhaka since the beginning of the International Crimes Tribunal (ICT) in 2010, said individuals made the decision, not organisation.

“People made individual decisions to do that and organised others to commit those crimes… so what’s so important about this trial is to try individuals, not groups,” the former prosecutor for courts trying crimes against humanity said.

At a press briefing on Tuesday, he said this was “essential” to the process of future peace and reconciliation.

Rapp, who made 10-page recommendations to the government in 2011 to make what he said ICT procedures and practices of ‘international standards’ made the comment at a time when the Ganajagaran Mancha is demanding the trial of Jamaat-e-Islami as a party.

The ICT investigator Motiur Rahman said earlier that Jamaat, as a party, could be tried for war crimes after its top leaders had been awarded varying sentences for crimes against humanity during the 1971 Liberation War.

Jamaat’s active role against the liberation of Bangladesh was highlighted in verdicts against its top leaders. The party operated as a branch of Pakistan’s Jamaat in 1971.

The International Crimes Tribunal-1, which sentenced Jamaat guru Ghulam Azam to 90 years in prison, described the party as a ‘criminal organisation’.

However, Law Minister Anisul Huq had said the Jamaat could not be tried for war crimes under the existing laws – an observation that provoked a sharp reaction from the Ganajagaran Mancha, a youth group demanding the maximum punishment of war criminals.

Prime Minister Sheikh Hasina, too, took a position similar to that of the law minister’s.

Rapp argued that societies reconcile only by holding individuals accountable.

“And that’s what happened to date,” he said citing the Nuremberg trial in which he said certain organisations had been declared ‘criminals’, but were not convicted.

The leadership of the organisations were convicted, he said.

“Individual makes the decision, not organisation and that should be the focus,” he asserted.

He said in this process “you separate bad things from those who didn’t (do that)”.

“I don’t think in international law its good practice to have prosecution which says a whole party and all of its members – which could be thousands of individuals – are responsible for the crime.

“You convict individuals – this is what modern international criminal law requires, and it’s also good policy because it allows reconciliation, it allows other people to rejoin the society and participate and reject those leaders who have done bad things,” he said.

He said he had seen elsewhere in the world that this process helped in building peace and reconciliation in the society.

Rapp arrived in Dhaka on Monday on a three-day visit and had meetings with ministers for law and foreign affairs, ICT investigators, prosecutors and judges.

He was always against death penalty since the beginning of the trial as he said for getting international support for the court and extradition of criminals, death penalty should not be used.

On Tuesday he repeated that the death penalty be used in the “most exceptional cases”, given the “passion” involved in these cases.

“Death sentences can create intense passion and conflict within society,” he said, though he acknowledged that both US and Bangladesh had deaths penalties in their law.

He said he had suggested the prosecutors and investigators to draw a strategy for the completion of trail since he said giving the nature of the crimes in 1971, “hundreds of people may be implicated for the trial”.

“But it’s humanly impossible to get every case investigated. You have to have strategy for really completing the work and doing in a judicious way,” he said.

He said he suggested them to prioritise their work and “focus on those most serious high level individuals and that it covers various parts of the country where the crimes were committed”.

He, however, denied Jamaat defence lawyers’ claim that he had suggested shifting the trail to a third country in a meeting with them on Monday.

He said it was “not realistic” to take the trial to a third country at this moment.

The defence lawyers proposed it during the meeting and they were “disappointed with my position”, he said.

He said the US policy was to try such cases at the national level. “It’s much better than be done far from the country at the UN and the international tribunal”.

The ICT has so far charged 20 people for their alleged involvement in crimes against humanity in 1971.

So far, only Abdul Quader Molla, a Jamaat leader, has been executed.

But before his execution, US Secretary of State made calls for a review of the verdict.

Rapp said there was high-level US concern as the death sentence had not been reviewed then.

He said the US made its concerns as the death penalty came only after appeal and passing a new law after the first judgment.

He said usually first court pronounced the death sentence and last court decides.

“International law requires a second court to evaluate the decision of first court,” he said.

He earlier said he was happy to see that judges were being able to carry out their jobs “without pressure, without politics, and without threats”.

He said the trial in Bangladesh could be “a model for rest of the world”.

“I think that is still possible,” he said.