In 2009 Prime Minister Sheikh Hasina’s Awami League swept to victory pledging to try the “war criminals” of the 1971 Liberation War. But whereas modern tribunals have actively promoted reconciliation and the rule of law, Bangladesh’s International Crimes Tribunal (ICT) remains a political gimmick, legitimized by an outmoded statute (International Crimes Tribunals Act 1973 [ICTA]). Rights of the accused are ignored while prosecutorial abuses are tolerated; investigators, prosecutors and judges are government-appointed, there is no right to interlocutory appeal, no right to privileged communication with the accused, insufficient time to prepare a defence, and, remarkably, no definition of crimes (see ‘Justice Without Politics?’ by John Cammegh, Counsel, February 2012).
With up to three million victims 1971 saw one of the most brutal conflicts in world history. Albeit forty years on, properly conducted trials might have achieved great things. But there is surely no point in seeking justice unless it is fairly applied: the government’s relentless pursuit of leaders of Bangladesh’s largest Muslim party, Jamaat e Islami, resembles a Stalinist purge. The ICT has polarized rather than united the nation, reigniting chaos that has left hundreds dead since it opened in 2011. With Jamaat recently banned from contesting it the election is likely to be violent.
The Sayedee Case: ‘Skypegate’ and the strange disappearance of Shukhoronjon Bali
Since the government barred the 9 Bedford Row team from Bangladesh in 2011 we have advised defence teams from London. Since ICTA specifically dispenses with rules of evidence, prosecutions have largely relied on spurious hearsay and bogus media reportage. Rare eyewitness accounts have been largely discredited: in Sayedee two leading prosecution witnesses, exposed as Awami League activists who had interfered with the investigation, wildly contradicted earlier statements. As the trial’s failings became public, further witnesses refused to testify, causing the prosecution to invoke an elastic ICTA provision allowing for statements to be read into evidence where witness attendance ‘cannot be procured without an amount of delay…which the tribunal considers unreasonable’ (s19(2)). The tribunal duly admitted fifteen witness statements-each going to charges hitherto unsupported by evidence. But the witnesses had been present all along: a copy of the prosecution’s ‘Safe Home’ register leaked to the defence showed each had been in protective custody during the trial. When the Tribunal refused to exhibit the register, one of the fifteen duly testified for the defence, confirming he had refused to act as a prosecution witness because his statement had been fabricated. Another of the fifteen, Shukhoronjon Bali, chose to testify for the defence regarding Sayedee’s alleged role in a notorious murder: on arrival at court he was abducted by state militia and vanished. Defence pleas to Mr Justice Nizamul Huq, chairman of International Crimes Tribunal One (ICT1), for assistance were predictably rejected: in 1992 Huq had played an instrumental role in the ‘People’s Court’, a public mock trial culminating in death sentences for many of the ICT accused, including Sayedee. ICT1 rejected a defence petition for Huq’s recusal and attempted to silence the 9 Bedford Row team by complaining – unsuccessfully – to the Bar Standards Board.
When originally constituted in 2011, ICT1 comprised Justices Fazle Kabir and Zakir Ahmed as well as Nizamul Huq. After further arrests in 2011, and four months into the Sayedee trial, Kabir was transferred into ICT2 to preside over the trials of other Jamaat figures. His replacement judge in Sayedee heard just one witness before the prosecution closed their case. When the moderate Zakir Ahmed unexpectedly resigned citing health reasons (according to the Law Ministry) in August 2012, his replacement in ICT1 heard only part of Sayedee’s defence case, leaving the chairman, Nizamul Huq, as the only remaining judge to have started trial. But in December Huq too was gone, humiliated by a scandal that exposed government interference and destroyed the ICT’s international reputation.
In December 2012 the Economist received a series of leaked emails and Skype recordings involving Nizamul Huq and a Brussels-based Bangladeshi lawyer, Dr Ahmed Ziauddin, self styled Director for Bangladesh Genocide Studies who had provided expert evidence for the prosecution in Sayedee. The Economist revealed that Ziauddin, apparently acting on behalf of the Law Ministry, had urged Huq to speed up the trials of Sayedee and Jamaat’s Amir, Professor Ghulam Azam, with promises of swift promotion to the Supreme Court’s Appellate Division. It also suggested that rather than resigning through ill health Zakir Ahmed had been removed at the behest of Law Minister Shafiq Ahmed: in an interview published immediately after the Economist’s expose Zakir appeared to confirm this.
In light of this ICT1’s chairman, Nizamul Huq, resigned at once. The Tribunal vainly summoned Economist journalists, citing contempt. Both Shafiq Ahmed and the prosecutor promised that Sayedee and Azam, as well as those cases now underway in ICT2, would be unaffected. This was remarkable, not simply because ‘Skypegate’ had fatally damaged the Tribunal’s legitimacy, but because ICTA – usually such a convenient prosecutorial tool – fails to address the situation whereby not a single judge remains on the bench throughout a trial.
In desperation, the government transferred Fazle Kabir back to ICT1 as chairman to keep Sayedee and Azam on the rails. Defence petitions for retrial were rejected, as was Human Rights Watch’s demand for an independent judicial inquiry as these cases – each carrying the death penalty – continued unabated despite no judge having heard all the evidence. In February 2013 Sayedee was convicted and sentenced to death, the Tribunal having earlier rejected a defence application to exhibit a video in which Shukhoronjon Bali confirmed that the statement he had supposedly given to the prosecution alleging Sayedee’s role in murder had been concocted. Professor Azam, now aged 90, fared little better: after a prosecution case that failed to link a single death to his wartime activities, and a defence case that suffered witness intimidation and arrest by state police, he was sentenced to 90 years imprisonment. Apparently the Tribunal felt this was lenient.
The Mollah Case: an illegal execution
Meanwhile, the various judges in ICT2 swiftly disposed of the cases of Mollah, Kamaruzzaman and Mujahid: each alleging crimes against humanity, each reliant on far-fetched hearsay reported by flaky witnesses, many of whom were shown to be beneficiaries of the current regime. In the aftermath of ‘Skypegate’ the bench had become impatient: disgracefully, after prosecution cases that had taken months, the defence in each trial was allowed to call fewer witnesses (six, four and three respectively) than there were charges on each indictment.
When he was convicted in February 2013 Mollah’s reaction to avoiding the death penalty – he flashed a V for Victory sign at the press outside court – provoked demonstrations up to 500,000 strong demanding his execution: swift to capitalize on the spontaneous outpouring of “sentiment of the people”, Hasina cynically amended the law, allowing the prosecution to appeal retrospectively for the imposition of the death penalty – a measure clearly prohibited by customary international law. To restrict the defence even further, the time limit for filing complex appeal pleadings was halved to 30 days. In such a febrile atmosphere it was no surprise when, in September, the Supreme Court Appellate Division – freshly swelled by government appointees – overruled ICT2 and decreed that Mollah be executed along with Sayedee, Kamaruzzaman and Mujahid, who had been convicted for crimes against humanity and sentenced to death earlier in the year. Each judgment was a work of flawed reasoning based on feeble evidence barely rising above idle gossip, the perils of which were neatly illustrated by subsequent revelations concerning one of Mollah’s ‘star’ witnesses.
One of the gravest allegations against Mollah was that he and others had broken into a house containing four young girls and their parents, all of whom were murdered except one of the girls, Momena Begum. Defence enquiries later revealed that when she told her story to a historian at Dhaka’s Liberation War Museum in 2007 Begum stated that she had not been present during the incident. In her 2010 witness statement she changed her story, apparently telling the ICT investigator that she had been present after all, and that the assailants were “Pakistani soldiers”. Crucially, this account again made no reference to the accused.
In oral evidence, Begum’s account was inconsistent with both previous statements. She described witnessing her father’s abduction and the murder of her mother and sisters (one of whom she alleged was raped) as she hid under the bed and for the first time stated that Mollah had been present – albeit she based this allegation on unattributed hearsay.
ICT2’s bench neglected to mention Begum’s 2010 statement in its Mollah judgment; earlier they had refused to admit her 2007 account into evidence on the basis that the document tendered by defence counsel was a photocopy of the original. This ruling was somewhat disingenuous given the bench’s previous rejection of a defence application to exhibit the museum’s documents. When the defence sought Begum’s recall in order to challenge her on the 2010 statement the bench refused that too, ruling this was ‘a tactic to cause unreasonable delay’. Perhaps an underlying sense of guilt prevented ICT2 from passing the death sentence after convicting Mollah on Begum’s evidence: but with the Prime Minister’s populist intervention the Supreme Court ruled he must hang anyway.
The strange reappearance of Shukhoronjon Bali
As civil disorder intensified, no single event provoked such intense bloodshed as when Sayedee, Jamaat’s leading cleric, was sentenced to death in February 2013. By May, the death toll had been put at 150, with over 2000 injured. Condemning the violent crackdown Human Rights Watch reported that ‘security forces used rubber bullets and live ammunition improperly or without justification, killing some protesters in chaotic scenes, and executing others in cold blood’.
Small comfort, then, that in May Shukhuronjon Bali was unexpectedly tracked down to a Kolkata prison having been arrested and detained by Indian frontier guards. According to an independent Bangladeshi newspaper, New Age, Bali claimed that after his abduction he was held in solitary confinement in a Dhaka police station before being blindfolded, driven away and dumped at the Indian border. When asked by New Age to comment Dhaka police denied all knowledge. Suffice to say, calls from Human Rights Watch and others for an independent investigation into the abduction of a witness intending to testify as to the falsity of a statement allegedly made by him that directly led to Sayedee’s conviction and death sentence were ignored. At the time of writing, Bali’s whereabouts is unknown.
Death penalty in absentia: Chowdhury Mueen Uddin
Early in 2013 the prosecution widened the net by charging Chowdhury Mueen Uddin with his alleged role on the dreadful night of 15 December 1971 when, just hours before their surrender to the intervening Indian army, the anti-liberation Al Badr death squads abducted and murdered thousands of Dhaka’s intellectual and professional classes. Alleged to be both an Al Badr commander and a prominent member of Jamaat E Islami’s student wing, Mueen was tried for mass murder as crime against humanity. He was swiftly convicted on 4 November 2013 and sentenced to death. But this case was different: Mueen is a joint UK/Bangladesh citizen who has lived and worked in London for decades. Keen to avoid political embarrassment, the Bangladesh government chose not to apply for Mueen’s extradition and he was tried in absentia. Apparently he was ‘represented’ by a government-appointed lawyer; apparently the lawyer didn’t try too hard. The case has been widely condemned in the UK and elsewhere: whilst formal dissent by members of the House of Lords led by Lord Carlile hasn’t been formally endorsed by the UK government, the fall-out from this case has hardly improved the reputation of either the ICT or the Bangladesh government.
Today, despite international condemnation, the Awami League promise more trials. Prime Minister Hasina is trapped now: she can’t afford to alienate hardline supporters by softening her position, but holding course makes widespread violence inevitable, not to mention the gathering storm of Islamic extremism should the executions go ahead. Ironically, an election defeat by the BNP, which has promised to fundamentally review both the ICT and its tainted judgments, may prove to be her saviour. Otherwise, she might find that the monster she created may soon turn on its maker.
John Cammegh, 9 Bedford Row