Grim experience of recent ad hoc tribunals like the Special Court of Sierra Leone suggest that if there can be no peace without justice, there can also be no justice without politics. But politically motivated, victor’s justice smacks of revenge: ultimately it doesn’t only threaten the rule of law; it threatens society as a whole.
Today in Dhaka, amid vengeful excitement, the Bangladesh International Crimes Tribunal (ICT) is the latest ad hoc court to open for business. Swept into power on a manifesto promising trials 40 years after the Liberation War of 1971, Prime Minister Sheikh Hasina and her Awami League government seek their place in history. But can the ICT avoid the mistakes of the past? One of Hasina’s law ministers, Qamrul Islam, recently declared:
“The tribunal will be more neutral and transparent than that of other war crimes tribunals so far held elsewhere in the world. It will be exemplary for the world community…working with full independence and complete neutrality”.
I was instructed along with Steven Kay QC and Toby Cadman from 9 Bedford Row’s international practice group to represent various of the accused in early 2011. They are on trial for their lives. Contrary to Qamrul Islam’s bold assurances, the reality of this tribunal is quite different - and it is chilling.
A Brief History
Pakistan’s violent partition from India in 1947 left a legacy of mistrust throughout the region that lingers to this day. To accommodate religious and cultural differences, newly created Pakistan was carved into western and eastern territories, divided by India’s vast northern expanse. East Pakistan, prone to natural disasters and suppressed by the western-based ruling elite, grew restless. In 1970, the nationalist Awami League movement forced free elections; the open revolt that followed in Dhaka in March 1971 sparked a savage nine month civil war.
Whilst nationalist claims of up to 3 million dead are exaggerated, there were grievous acts of genocide that left few families untouched: mass murder and forced displacement on religious or ethnic grounds were committed on both sides. Hindus in particular suffered at the hands of invading west Pakistani forces resisting Bangladeshi independence before India’s decisive intervention in December 1971.
Adopting Nuremberg as a template, the newly-formed Bangladesh government introduced the International Crimes (Tribunals) Act (ICTA) in 1973 to try west Pakistani military personnel and local “razakar” units for genocide, crimes against humanity and war crimes inflicted on pro-liberation “freedom fighters” and civilians. But the idea was swiftly abandoned: in a laudable act of reconciliation the Prime Minister, Sheikh Mujibur Rahman, offered a blanket amnesty to all armed forces for their conduct during the conflict. His own people were not as forgiving; in 1975 Mujibur and most of his family were shot dead by their own security men.
A Political Prosecution?
Beset by a failing economy, endemic corruption and increasingly fragile democracy, the government’s revival of the tribunal seeks to capitalise on the war’s 40th anniversary. But who should be tried? The Pakistani armed forces were repatriated; most of the razakar leaders left with them or have since died; and the 1973 amnesty has never been revoked.
Cunning amendment to ICTA solved the problem by targeting civilian “individuals” for prosecution. In contrast, immunities for pro-liberation “freedom fighters” remained intact, irrespective of their conduct in the conflict. Increasingly, the ICT is assuming the appearance of a political blunt instrument designed to eliminate opposition figures. That five of the first six arrested in mid-2010 comprised the leadership of Bangladesh’s main Islamist party, Jamaat-e-Islami - the sixth being a leading figure in the Bangladesh National Party - was no coincidence. Jamaat opposed independence in 1971; in 2001 their alliance with the BNP sealed the Awami League’s electoral defeat.
An independent tribunal?
Whatever the government’s motive, ICTA provides the natural habitat for a political show trial, conferring powers upon government-appointed judges, prosecutors and investigators that virtually erase the rights of the accused. Those convicted face execution-a detail Prime Minister Hasina conveniently overlooked in September 2011 when she promised the UN General Assembly that the ICT would conform to International Criminal Court standards.
In actual fact, ICTA bears no relation to the ICC statute. Pre-trial provisions are offensive: investigators are mandated to detain and question any person without notice; suspects have no right to disclosure, no right to silence in interview, and no right to be attended by a lawyer. When the first arrestee, leading Jamaat cleric Delwar Hossain Sayedee was interviewed, his lawyer was forced to “observe” from a closed adjoining room, unable to see or hear. During lunchbreaks excited investigators briefed the baying press on Sayedee’s “confession”.
In October 2011, after fourteen months in custody, Sayedee was finally charged with twenty counts of genocide and crimes against humanity on an indictment drafted by the judges themselves. He was forced to enter pleas immediately without being allowed to consult his lawyer. The charges comprise a series of duplicitous allegations lacking clarity in date or location. Since the rules of procedure provide just three weeks between formal charging and trial - by which time the defence is to provide the court with comprehensive details of its case - Sayedee might be forgiven for feeling a little hard done by.
Trial procedure is equally egregious. ICTA dispenses with fundamental rules of evidence entirely: the 1872 Evidence Act and 1898 Criminal Procedure Code (largely based on English statutes) that apply domestically are outlawed. Special provision is made for the admissibility of newspaper articles, film and radio reports despite the media’s tendency to exaggeration. That none of this material will be attributable or open to forensic scrutiny doesn’t seem to matter. There is no provision for disclosure of unused or exculpatory material and nothing to ensure independent recording of the evidence. Provisions in the rules for foreign counsel were by-passed when the Bangladeshi bar association duly refused to grant rights of audience. International scrutiny of the trials is effectively prevented by the tribunal’s refusal to seek international technical assistance or trial monitoring.
What of the crimes themselves? Remarkably, ICTA makes no attempt to define the offences over which the tribunal has jurisdiction. It gives no clue, for example, as to the ingredients of crimes against humanity, and it is equally silent on what might constitute a defence. Given the international debate over the legal status of crimes against humanity, the judges might have acceded to the defence team’s petition for clarification, if only for their own benefit: but they declined, thereby revoking the accused’s right to be informed of the case against him. The judges’ announcement that they may decide to adopt legal developments on the subject at a later stage didn’t just confirm their confusion about the law; it suggested they are open to making it up as they go along.
Naturally, one would immediately appeal such a decision. But an amendment to the Bangladesh Constitution has got that covered: Article 47 (3) explicitly removes any right to interlocutory appeal from the tribunal to a separate or higher court. And whilst the tribunal is fully empowered to entertain a review of its own decisions, results so far have predictably shown that the tribunal is disinclined to overrule its own judgment.
An impartial tribunal?
Commencement of Sayedee’s trial was delayed after the alarming discovery that the tribunal’s chairman, Mr Justice Nizamul Haq Hasim, was party to a one-sided commission of inquiry in 1994 that arbitrarily condemned the activities of several Jamaat members during the war, including Sayedee. The chairman withdrew from deliberations into the defence’s petition for his recusal, but his two colleagues dismissed the application anyway, ruling that the Rules of Procedure forbid the challenge of a judge under any circumstances. Instead, they left the chairman to consult his conscience. Justifying his refusal to recuse himself, the chairman expressed his outrage at the suggestion that his presence raised a perception of bias and prejudiced the accused’s right to a fair trial. Irked by our involvement the judges threatened to report the 9 Bedford Row defence team to the Bar Standards Board. Having been shadowed by hapless Bangladeshi security operatives in both Dhaka and Kuala Lumpur and attacked in the Bangladeshi media - not to mention my colleague Toby Cadman’s ejection from Dhaka airport earlier this year - threats like this have become an occupational hazard.
A fair trial?
It’s hard not to think the dice are loaded. Recent weeks have seen disturbing reports of pro-government strong arm tactics. Following a mass anti-ICT demonstration in Dhaka in September 2011 where hundreds were arrested and many injured, an arrest warrant was issued for the Jamaat detainees’ Bangladeshi lead counsel alleging his involvement - overlooking the fact that he was in Europe at the time. As the respected NGO Human Rights Watch has disclosed, another of Sayedee’s local lawyers was warned to stay away from work on threat of arrest shortly before the trial was due to start. Elsewhere, the police arrested six of Sayedee’s proposed witnesses and urged them to withdraw from the case. A week before the trial Sayedee’s lawyers were forced to abandon investigations in his former home town after being threatened by local Awami League militants; the town’s police superintendent claimed not to have received the tribunal’s order to provide protection.
When Sayedee’s trial commenced on 7th December, it was hailed by the press in a blaze of glory. One national paper featured lurid photographs of the simulated public hanging of the five current Jamaat detainees. It’s too early to know if the trials themselves will be fair, but Justice Minister Shafique Ahmed’s recent claim that ‘Perpetrators responsible for the murder of three million people and violation of 200 000 women during the Liberation war are currently in the dock’ doesn’t augur well. In the courtroom, a recent decision by the tribunal to disallow any cross examination on the content of previous inconsistent statements made by prosecution witnesses doesn’t look too clever either.
A disaster in the making
Nobody can rightly say this tribunal is unjustified in principle, even if it is somewhat late: if run properly it could do much to assuage the agonies of 1971 that still traumatise the country. But Stalin-style show trials will ultimately betray the victims and the rule of law, leaving a legacy of the same hatred, chaos and retribution that the tribunal was supposed to put to rest. It is an opportunity missed: many see the ICT as a focal point for a government-led crusade seeking vengeance above reconciliation amidst a political culture that brooks no dissent. Revenge, it seems, wins votes: the next election is in 2013. But tension is mounting as these trials become a rallying point for secular, Awami League nationalists and anti-government, largely Islamic opposition groups alike. With deteriorating living standards and political freedoms they could trigger a call to arms by extremists on both sides. Despite a wave of fatal bombings in Dhaka on 18th December the government remains undaunted: ICT prosecutor Rana Dasgupta’s recent prediction that “2012 is the year of verdict of the war crimes trial and 2013 the year of verdict execution” says it all.
Could there be a political solution? It seems not. Polite objections by the US State Department have been ignored. Fellow Commonwealth nations (including the UK) that are both party to the ICC and also signatories of the International Covenant on Civil and Political Rights have stayed silent. To them, defending the human rights of what they see as a distant Islamic fundamentalist group in a country of little strategic importance is not a priority. Once again, justice is trumped by politics. This is Bangladesh, after all, not Afghanistan or Syria…and nobody’s listening.
An abridged version of this article appeared in The New York Times.