Setting a bad precedent

Schona Jolly explains the Bar Human Rights Committee’s concerns over the Bangladesh War Crimes Verdicts.

In the dying days of Bangladesh’s 1971 War of Independence, in which liberation from what was then known as West Pakistan was sought, grave and widespread atrocities were committed. Estimates of the killings range from about half a million up to three million people, but there is no reliable data. Over forty years later, the attempts to bring much-sought justice for those atrocities are being mired by the controversies surrounding the International Criminal Tribunal (ICT) which was set up in 2010 to try Bangladeshis accused of being complicit in those crimes.

The Tribunal was set up purportedly to put an end to decades of impunity, without any UN or international involvement. Growing criticism from international human rights groups had already generated serious doubt as to the impartial and independent nature of the Tribunal. The Bar Human Rights Committee has issued four Statements of Concern surrounding the ICT process over the last six months. Without any of those concerns having been resolved, the first four verdicts have been reached by the ICT.

Three of the four convictions have led to the death sentence. The second verdict, Molla, is being appealed by the Prosecution who seek a capital sentence on the basis of retrospective legislation passed to enable them to do so, once the verdict was delivered. Sayedee’s appeal, the third verdict, against his death sentence is due to be heard imminently. His trial perhaps exemplifies some of the gravest concerns with the ICT process as a whole. A prosecution-turned-defence witness, Bali, was alleged to have been kidnapped from the door of the court in November 2012. The court refused to order any proper and meaningful investigation into the circumstances of that disappearance, despite the apparent availability of witness and CCTV evidence. News has just broken that the abducted witness has been found in an Indian jail. This raises many new questions, such as who ordered the alleged abduction, and who was complicit? It is imperative that both the Indian and Bangladeshi Governments take steps to ensure the safety of the witness. Other features of apparent unfairness include arbitrary, disproportionate and unjustifiable restrictions which have been placed on the defence. The Economist’s ‘Skypegate’ scandal which broke just before Christmas heightened concerns of collusion; specifically that the government was placing undue and inappropriate pressure on the tribunal for positive verdicts. This resulted in the resignation of Justice Nizamul Huq, the reappointment of a new Judge and a tribunal who gave a verdict ultimately without a single judge on the panel having heard the totality of the evidence. The role of the Judge being able to test, consider and analyse all of the evidence obtained, including conducting a detailed assessment of the credibility of that evidence and the witnesses who testify, is a vital judicial function in any fair criminal trial; this function is underscored when it is already difficult to obtain reliable evidence relating to matters which took place forty years ago and which have sunk into the collective national memory and psyche so strongly. The obligation to hold a fair trial must be even stronger in capital cases. The list of concerns has grown and without a thorough, independent investigation of them, the integrity of the entire Tribunal process lies in considerable jeopardy.

The BHRC, having called for the ICT process to be suspended pending an urgent independent investigation into these matters, recently held a symposium in the House of Lords to draw a spotlight onto this matter. Although the Committee made extensive efforts to invite members of the Prosecution and the Bangladeshi High Commissioner, neither produced an oral or written statement in response to the BHRC’s concerns. Although a representative of the High Commission did attend the latter part of the event, no specific response to the concerns raised by the BHRC has been forthcoming. The message from all the participants at the symposium, including Ambassador Stephen Rapp and Human Rights Watch, was that it is not yet too late for the Bangladeshi authorities and the Tribunal itself to ensure that the Bangladeshi people are given an accountable, legitimate system of justice through a transparent tribunal system that works to convict or acquit parties in accordance with the international standards of fair trials to which Bangladesh is signed up. At the time of writing, the Molla appeal is underway and the Sayadee appeal is due to be heard.

Schona Jolly, Cloisters Chambers

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