Bangladesh justice: damned if you do, damned if you don't

Toby M. Cadman 5 March 2013

"One must ask what is the point in a trial where the only acceptable result is execution": have politics irreversibly stolen fair and impartial justice from the victims of the 1971 War of Liberation?"

I first visited Bangladesh in October 2010 and was greeted with a VIP red carpet reception at the Hazrat Shahjalal International airport in Dhaka. I was rushed from the airport to the Sonargoan Hotel to speak at an event hosted by the Bangladesh Supreme Court Bar Association on fair trial issues in war crimes trials. I was then taken to the old Supreme Court building that housed the International Crimes Tribunal and met the Tribunal Judges, two of whom have since resigned, and the Tribunal Registrar. This was my first visit to South East Asia and I was startled by the warm reception. I realised during this brief visit the enormity of my role. It was to save the leaders of the Bangladesh Jamaat-e-Islami, an Islamist political party with conservative Islamic views not favoured by the west. I remarked to one of my colleagues that this was a once in a lifetime opportunity for a young lawyer; I was not wrong.

The almost royal reception I received was short lived. The infamy that this case has brought has not diminished my status as an integral part of Bangladeshi politics – I am frequently recognised by members of the Bengali diaspora in East London and Manhattan taxis alike – I am not revered for any great achievement, I have become a thorn in the side of a government hell bent on destroying any political opposition.

The central problem in all of this is that the people of Bangladesh, a wonderfully warm and divergent population, are deeply divided by the issue of war crimes. Rational individuals lose all sense of reason when questioned about war crimes. Fair trial and due process rights have no place. All those accused of war crimes must be convicted and duly executed. Nothing less will suffice.

The demonstrations in Shahbagh epitomise the current political climate. The streets are filled with simply thousands of screaming supporters calling for death. Adults and children alike are sporting bandanas and T-shirts calling for the Islamist party leaders to be hung until dead. One must ask what therefore is the point in a trial where the only acceptable result is execution. One is reminded of the words of Justice Jackson, Chief Prosecutor of the International Military Tribunal, Nuremberg who stated:

If you are determined to execute a man in any case there is no occasion for a trial. The world yields no respect to courts that are merely organized to convict.

We must never forget that the record on which we judge these defendants today, is the record upon which history will judge us tomorrow. To pass these defendants a poised chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task, that this trial will commend itself to posterity as fulfilling humanity’s aspiration to do justice.

The present situation in Bangladesh is critical. The demonstrations in Shahbagh, that followed the first two convictions before the Bangladesh International Crimes Tribunal (hereinafter: the Tribunal) have been compared to the revolution that started on Tahrir Square in Cairo. However, there is little comparison to be drawn. The Egyptian revolution sought to overthrow a dictator and return the democratic vote. The demonstrations in Shahbagh are seeking the execution of the leaders of an Islamist political party, and ultimately seeking the abolition of a democratic political party due to its Conservative Islamic beliefs and due to its perceived anti-liberation position in 1971 by supporting a unified Pakistan. One simply has nothing to do with the other.

The danger in what is occurring on the streets of Dhaka today is that mob rule prevails and the country is descending dramatically and rapidly towards civil war. The current Government is doing little to stem the flow of violence. If anything, by supporting the protesters, it is throwing fuel on the flames of discontent. To this point, the Prime Minister, Sheikh Hasina Wajed, has been reported as saying in Parliament that she would talk to the judges to convince them to take the sentiments of the protesters into account in formulating their decisions. It is notable that one of the first judgments issued by the Tribunal referred to the ‘will of the people’ in reaching its decision clearly demonstrating the emotive manner in which these trials are now being conducted.

On 28 February 2013, the third accused, Maulana Delwar Hossain Sayedee, was convicted and sentenced to death following a trial that was characterized by prosecutorial and judicial misconduct, witness perjury, witness abduction and a flagrant denial of basic human rights standards. The call for death echoed by the Shahbagh demonstrators has seemingly dictated the course of events unfolding in the Tribunal in an atmosphere where defence witnesses are now too afraid to appear and where the judges have now been swayed by mob, anti-Jamaat sentiment. The big question is what would have been the response of the Shahbagh demonstrators had Sayedee not received the death sentence. It is clear that the Tribunal Judges were under such pressure to respond to the public calls for blood that, had they not responded as such, it is not inconceivable that it could have been their own blood spilt on Shahbagh. It has become a question of damned if you do damned if you don’t.

It is of course unquestionable that the nine-month liberation war that saw East Pakistan secede from the dominant rule in West Pakistan caused suffering on a massive scale. Figures ranging between 300,000 and 3 million are reported to have died during the conflict. Murder, rape and torture were prevalent. Millions of refugees were forced to flee to neighbouring India. It is therefore unquestionable that there should be a judicial response. In fact, immediately after the cessation of hostilities, the International Commission of Jurists opined that an international tribunal under the auspices of the United Nations should be established in order to bring to justice all those who bore responsibility for crimes of an international character. It was recognised that although the Pakistan Military leadership bore significant responsibility, crimes were committed on all sides and consequently an international response was required. These calls went unheeded. Little attention was given to Bangladesh and as a consequence a culture of impunity, which has pervaded Bangladesh politics ever since, was ignored for 41 years.

My involvement in this process over the last two years has taught me one thing; no one really cares about Bangladesh. I have to confess that is one of the saddest aspects of this whole process. How do you make people care? Why is this not front-page news in the western media? Is it the fact that there is no oil? Do we have no real interest in the future of Bangladesh? It would seem that unless we start paying attention, start listening and start thinking what it is Bangladesh now needs, and by Bangladesh I mean all the people of Bangladesh and not just the Government and its cronies, it is quite conceivable that Bangladesh will descend into bitter sectarian conflict. The leaders of Bangladesh, all leaders, must also start putting to one side their petty squabbles and also look to how this process can better serve a purpose of justice and accountability.

Violence and injustice

The Tribunal was established with the stated aim of bringing to justice those who committed war crimes, crimes against humanity and genocide during the 1971 War of Liberation. The pursuit of justice for the victims of the undeniable atrocities that occurred during 1971 is indeed important. Sadly, the opportunity for Bangladesh to come to terms with its past has been missed. The manner in which the Government has attempted to influence the judicial process risks not only destroying Bangladesh’s opportunity to come to terms with its past, but it also risks creating a very dangerous precedent in international justice that could infect the attempts of its neighbours, including Burma and Sri Lanka, to bring an end to impunity.

On 21 January 2013 the Tribunal convicted Abdul Kalam Azad, the first accused, in his absence and sentenced him to death. Azad is believed to be in Pakistan, having fled shortly after the initiation of the investigation. A state attorney was appointed to represent him. His attorney had no prior experience in conducting a war crimes case. He had 3 weeks to prepare and called no evidence in defence of the charges. His closing speech, in what was the first case of Genocide in Bangladesh in 41 years lasted less than two hours. It is notable that the appointed lawyer was a student member of the current ruling Awami League Party.

The recent life sentence handed down by the Tribunal on 5 February 2013 against Abdul Quader Mollah has done little to quench the determination of the Bangladeshi government to see all of the accused executed. Far from respecting the Tribunal’s decision, a hastily arranged amendment was passed which would allow the State to appeal against the sentence – i.e. to ensure that Abul Quader Mollah will face the death penalty. This development follows shortly after last month’s death sentence passed in absentia. The judgments in both cases are guided by a distinctly pro-Bangladesh narrative and unashamed bias against those whose political ideologies conflicted with that of the current ruling party. The actual evidence against the two men was of secondary importance. Indeed, the judgment in Mollah states in the second paragraph that “the degree of fairness as has been contemplated in the [International Crimes Tribunal Act of 1973] and the Rules of Procedure…are to be assessed with reference to the national wishes.” This is a deeply disturbing statement to find in any legal judgment. There are numerous errors of law in both the Azad and Mollah cases that demonstrate a lack of understanding of complex principles of international humanitarian law and the elements required to establish crimes against humanity and genocide.

The Sayedee conviction and sentence represents the most disturbing display of manipulated justice. It should serve as a warning that the Government of Bangladesh is driving the country deeper into sectarian conflict, and that the violence on the streets of its major cities is likely to increase.

Other developments are of similar concern. In the case against one of the accused, Professor Ghulam Azam, one defence witness was recently threatened, apparently by a member of the prosecution, with facing charges for war crimes himself if he decides to testify on behalf of the defence. Another potential defence witness was recently arrested. This reflects a similar incident that received international attention in November 2012, when a prosecution-turned-defence witness was abducted by plain-clothed police officers outside the gates of the Tribunal on the morning of his testimony. In all instances, the police, the authorities and the judges were informed of the situation but did nothing.

The plethora of problems with the trials generally has been published widely both in Bangladesh and in the international media. Following last November’s leaked Skype conversations and emails, between the former presiding judge and Chairman of the Tribunal, Justice Md Nizamul Huq with an undeclared third party, revealed to be a Bangladeshi law professor residing in Belgium, the scale of the injustice that the accused face has become clear. It must be stated that in light of the exposed transcripts of these conversations and emails, it appears obvious that even the most basic standards of fairness and due process have been wilfully ignored.

What is also clear from the leaked conversations and emails is the overwhelming evidence of serious judicial and prosecutorial misconduct, and the collusion of the Government with members of the judiciary and prosecution to ensure quick convictions. Indeed, the exposure of these conversations was the validation of years of criticism of the Tribunal since its inception by prominent international bodies including the Bar Human Rights Committee of England and Wales, Human Rights Watch, the United Nations Working Group on Arbitrary Detention, Amnesty International as well as the UK House of Lords and US Ambassador for Global Justice, Stephen Rapp, to mention but a few.

Given the fact that all the cases have now reached the final stages and the accused, having not received a fair trial by any reasonable standard or observance, face imminent death upon conviction, the US and UK governments must take prompt and collective action to ensure that the rule of law and the fundamental human rights of the accused are observed. In particular, the evident violation of an accused person’s right under international law to a fair trial, as provided by Article 10 of the Universal Declaration of Human Rights and Article 14 of the International Covenant of Civil and Political Rights (to which Bangladesh is bound), is a major issue about which both governments should be very concerned.

Turning a blind eye to the injustice that is currently unfolding in Bangladesh is no longer an option. What is required now, is immediate and effective action to ensure that the trials of the accused before the Tribunal are suspended pending an independent, international investigation into the serious allegations of misconduct against members of the Tribunal including judges and prosecutors, as well as senior members of the Bangladeshi Government and undeclared third parties.

The perpetrators of the crimes committed during 1971 deserve to be punished and the victims deserve closure. However, only a fair trial before an impartial and independent panel of judges will enable Bangladesh, as a nation, to move past the lingering pain brought about by the legacy of war.