Fair and Equitable? The Problems with Bangladesh’s war crimes tribunal

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This week saw the sentencing of two supposed war criminals in Bangladesh, for crimes committed during the 1971 Civil War in what was then then known as East Pakistan (here, you can find one of the judgments in the proceedings). As aptly observed by others, the proceedings of the tribunal exposed deep divisions within Bangladeshi society, including sectarian divisions, stemming from those fateful months when today’s Bangladesh fought for its independence.

Sadly, the Bangladesh War and the mass atrocities – many refer to it as genocide – that accompanied it have been largely forgotten. The recent turmoil in Bangladesh provides an opportunity to revisit this challenging, yet ignored chapter of international criminal law.

Origins – The 1971 Bangladesh War

The conflict’s origins were both linguistic and cultural in nature: In essence, West Pakistan (the provinces encompassing today’s Pakistan) was mainly Urdu-speaking and somewhat more suspicious towards India and decidedly pro-Western in its foreign policy. On the other side, East Pakistan (today’s Bangladesh) was principally Bengali-speaking, featured a sizable Hindu minority and was somewhat more sympathetic towards the Soviet Union. Add to that a well-documented level of discrimination towards East Pakistani citizens, and you had the makings of a movement for greater political autonomy.

To cut to the chase, West Pakistan’s rulers proved somewhat insensitive towards their eastern brethren, and when the pro-autonomy Awami League party won the federal elections in 1970, the West Pakistan-dominated military imprisoned East Pakistan’s leaders, rounded up “undesirables” as part of the somewhat notorious Operation Searchlight and turned East Pakistan into a civic rights-free zone – intellectuals were executed, women were systematically raped (depending on the source, the number of victims ranges between 200,000 and 400,000) and religious minorities were persecuted relentlessly. Whilst the exact death toll is disputed, there are serious estimates of up to 500,000 fatalaties. The Bangladeshi government claims that up to 3 million Bengalis may well have lost their lives. As it happens, the Pakistani military-era government never offered a formal apology for the atrocities committed in its name. But that’s another topic altogether. Instead of stiflng the independence movement, hindsight shows that the brutal crackdown actually accelerated the drive towards independence for East Pakistan.

Approximately 10 million refugees began streaming into neighbouring India (with 30 million internally discplaced), to the extent that the Indian government felt pressed for resources to take care of the refugees began a diplomatic campaign to win tacit backing for a war against Pakistan – in order to liberate Bangladesh (as “East Pakistan” was now called by the secessionists). Pakistan proved somewhat trigger-happy, and decided (unwisely) to challenge the Indian military to a game of one-upmanship. The Indian military gladly took up that invitation and within two weeks defeated the Pakistani forces and compelled their unconditional surrender in December 1971, including the imprisonment of 90,000 prisoners-of-war. So far so good?

Not quite. It would appear that due to political reasons – such as maintaining the viability of Bangladesh against future Pakistani attack, and in order to not cause a full-scale re-enactment of the civil war after the nation’s independence, the country did not bother to institute a process of bringing alleged collaborators with the Pakistani military to account. In 2009, the Bangladeshi Parliament passed amendments to the legislation originally enacted in 1973. The amendments were supposed to bring the new International Crimes Tribunal in Bangladesh up to international standards. A laudable effort that received the endorsement of such groups like Human Rights Watch – initially. Because what followed afterwards was a farce of the highest order. The problem appears to be the one-sidedness of the proceedings, a state of affairs that threatens to permanently scar a process aimed at national reconciliation through the delivery of justice.

The key problems lie in three areas: the legislation itself, the manner in which the trials have been conducted and the implications for political life in Bangladesh. I shall address each of these in turn.

1.) Flawed Legislation

Several elements of the new International Crimes Tribunal (Amendment) Act fail to comply with internationally recognised standards of fairness, as stipulated by both the Rome Statute of the International Criminal Court (“the Statute”) and the International Covenant on Civil and Political Rights (ICCPR).

When examining the legislation, the first problematic provision that comes to mind is section 3 of the Act, which permits retroactive prosecution of suspected war criminals. This provision is in contravention of Article 15 ICCPR and Article 22 of the Statute, both of which prohibit the retroactive conviction of suspected perpetrators for crimes that were not punishable at the time when the criminal act was committed. The equal, fair and just treatment of the accused before the tribunal is also doubtful – particularly since fundamental constitutional guarantees and fair trial rights usually afforded under the Bangladeshi Constitution have been excluded by virtue of sections 23 to 26 the Act and Article 47A(1) of the Constitution.

Further, the second area of concern is related to the furnishing of universally applicable fair trial guarantees to suspects. This is particularly startling in connection to the right to silence: According to section 11 of the Act, the tribunal is authorised to ask any question and make adverse inferences in the event that the suspect fails to answer a question or replies falsely – without any advance notification to the parties, including the defence. Similarly, according to section 18 of the Act, witnesses may not plead potential self-incrimination as a legitimate ground to refrain from answering a question from the Bench. This represents an emphatic violation of Articles 14(2) and 14(3)(g), ICCPR and Article 67(1)(g) of the Rome Statute.

Moreover, the procedural framework of the Act is riddled with provisions that are incompatible with the ICCPR and the Statute. For instance, the rights of the accused in the Act have been delineated in very strict terms: Section 17 only confers the rights to defend oneself, to cross-examine witnesses and to give any relevant explanations to the Court. This forms a stark contrast to Article 67 of the Statute, which affords a comprehensive set of rights an accused may avail himself of during proceedings before the International Criminal Court. These include prompt information about the charges (Article 67(1)(a)), the provision of adequate time facilities for the preparation of a proper defence (Article 67(1)(b)) and trial without undue delay (Article 67(1)(c)). As for the latter, the Act only stipulates that the Prosecution is merely obliged to provide a list of witnesses and evidence three weeks in advance of the start of the trial. This severely hinders the preparation of an adequate defence.

To add to these procedural defects, the defence of an accused is also hampered by provisions in the legislation that envisage that pleading self-defence, duress, mistake of fact or law, or superior orders will not be recognised as valid defences to the charges before the tribunal. Ordinary rules of criminal procedure have been eliminated by virtue of section 23 of the Act – legislation affected includes the Evidence Act 1872 and the Criminal Procedure Code 1898. Therefore, rules relating to the relevance of evidence whose admission is sought have been invalidated for the purposes of the war crimes tribunals. This is further compounded by the fact that the Court’s reasoning cannot be judicially reviewed by virtue of Article 44 of the Bangladeshi constitution. This provision violates Article 14(5), ICCPR, which stipulates the right to appeal a decision. It also stands in direct contrast with Article 81 of the Statute, which provides for appeals on a wider range of occasions than the Act.

Finally, what stands out even more than the actual provisions are the stipulations that were not included in the legislation: There is no duty on the prosecution to notify the Parties of exculpatory evidence, no special measures for witnesses and no possibility of challenging an unlawful arrest more than once, let alone the foundation and funding of a Defence Office that could provide for an equality of arms between the parties. All these are contained in the ICCPR and the Statute. With all these facts taken together, it is clear that the Act violates international recognised standards of fairness.

2.) Conduct of the Trial

Various developments during the proceedings of the International Crimes Tribunal give cause for concern about its fairness, equitable nature and capacity to deliver justice. For instance, Parliament intervened with a retroactively effective law to supersede life sentences and enable appeals courts to impose death sentences instead.

This legislative action was the consequence of political pressure exercised on the streets of Bangladeshi cities and by the country’s government. In fact, the Prime Minister, Sheikh Hasina, has commented that she would attempt to impress upon the judges to take the mood of the public into account during the sentencing of the defendants concerned. If that’s not a complete disregard of the doctrine of separation of powers, I don’t know what is.  By its very definition, opening up capital punishment as an option during exisiting proceedings moves the proverbial goalposts and raises the stakes for the defendants concerned. Independent of their guilt, this is not a process marked by respect for the rule of law.

Then, there is the aspect of defence preparation: Their access to legal counsel was restricted, as illustrated by the case of Toby Cadman, a barrister specializing in international criminal law, being prevented from actually entering the country. In effect, they had to advise their Bangladeshi colleagues in the defence team from afar. In one instance, a key defence witness went missing shortly before he was to give testimony in the proceedings and suddenly turned up in an Indian prison. The defence team further claimed that the prosecution principally relied on written testimony, failing to present their witnesses before the court and, consequently, making it impossible to have them properly cross-examined by the defence. Leaving aside the fact that it is very hard to conduct a trial looking into atrocities that happened forty years ago in the first place, these procedural flaws don’t make an effective and equitable administration of justice any easier. And that’s putting it diplomatically.

3.) Dhaka, not The Hague

It is fairly obvious to the neutral eye that the Bangladesh war crimes tribunal has been anything but fair and equitable. On the contrary, given that the defendants are mainly from one political party, the Jamaat-e-Islami, which has long been a thorn in the side of the ruling Awami League party, it seems reasonable to suspect that the prime minister (daughter of the nation’s founder, Mujibur Rahman) wishes to settle old scores without paying any real heed to internationally recognized standards of fairness or due process. This has also become apparent by the fact that those actually responsible in a command-and-control sense, namely officers of the Pakistani armed forces have not been asked to appear.

No extradition requests were ever made by the Bangladeshi government. Without doubt, this may also be because some of the key players have passed away. But other officers are still alive and well in their home country – for reasons that have to do with geopolitics: Shortly after the Bangladesh War, there were plans for a war crimes tribunal. Unfortunately, they were shelved (although one has to wonder whether such a tribunal would have even attempted to create a semblance of a fair trial at the time).

Additionally, India, keen on reaping a peace dividend from its victory in the war (together with its Bangladeshi/East Pakistani freedom fighter allies) signed the Delhi Accord with a weakened Pakistan and a functionally dependent Bangladesh (which was literally just recovering from the atrocities inflicted upon it during its Independence War). One of the provisions included the return of all 93,000 prisoners of war – including the approximately 500 Pakistani military personnel accused of war crimes or acts of genocide during the hostilities. And that’s just the prisoners of war. The political leadership of then-West Pakistan, including President Yahya Khan (who certainly made statements reminiscent of previous genocidal regimes and kept denying the existence of millions of Bangladeshi refugees towards the international media) and the commander of the Pakistani forces in East Pakistan, General Tikka Khan were never put on trial or even (in the latter’s case) court-martialled for their role in the Bangladesh War. Indeed, the International Commission of Jurists (in its 1972 Report titled: “The Events in East Pakistan, 1971”) recommended an international, rather than a domestic trial for Pakistani military officers. In an echo of what would happen decades later in Bosnia and Rwanda, the report criticizes the organizational paralysis and inaction towards the mass atrocities in Bangladesh by stating:

“The inability of the United Nations to have any significant impact on the events in East Pakistan suggests that the Organization should reconsider some of its basic attitudes towards situations of this kind. The most serious omission of the United Nations was its failure to act upon the authenticated reports of massive killings and other gross violations of human rights committed by the Pakistan army in East Pakistan”

Whilst the intention of prosecuting those responsible for war crimes, crimes against humanity or genocide is noble, it has been executed in Bangladesh in a manner that is wholly inconsistent with recognized legal standards. It appears more like a political vendetta than a genuine attempt at achieving true justice – the International Crimes Tribunal in Dhaka is a lot of things, but Nuremberg, Tokyo or The Hague it is not.

Coming Up: Why Syria may well need to be handled differently

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