Credit: Mizankecb11, via Wikimedia Commons
Bangladesh has been marked by riots and violence, with more than 80 killed since January 21, 2013 due to conflict surrounding the International Crimes Tribunal’s recent convictions of members of the Islamist Jamaat-e-Islami political party on charges stemming from the its collaboration with Pakistani forces during the 1971 Liberation War, through which Bangladesh won independence. [The International] Since it began operating, the tribunal has been the subject of controversy and criticism, including calls from international human rights actors to strengthen protections for those standing trial. [Crimes of War]
The worst violence came on February 28, the day the tribunal sentenced Jamaat leader Delawar Hossain Sayedee to death by hanging for murder, abduction, rape, torture and persecution committed in 1971. [Economist] Many of Bangladesh’s youth celebrated the verdict, while Jamaat supporters claim that the tribunal is politically motivated in its targeting of opposition parties, including Jamaat and the Bangladesh Nationalist Party (BNP). [New York Times; Washington Post]
Human rights organizations and other observers issued strong condemnations of the conviction. The International Commission of Jurists stated, “the death sentence handed down…violates international standards of due process and fair trial, and, if carried out, would violate his right to life” and highlighted the “serious procedure flaws” that had marred the tribunal’s trials at “all stages: pre-trial release has been routinely and arbitrarily denied; witnesses have been abducted and intimidated; there have been credible allegations of collusion between the Government, prosecutors and judges.”
In response to Delawar Hossain Sayedee’s sentence, an alliance of 18 political parties, including Jamaat, called for a nationwide strike and riots have spread all over the country. [Washington Post] Journalists and bloggers are also reported to face targeted violence due to their coverage of events. [Amnesty International] Soldiers were deployed to Northern Bangladesh in early March after five people died in clashes with the police during the strike. [Guardian; Washington Post]
UN Secretary-General Ban Ki-moon has expressed sadness for the loss of life and called for peace. [Business Recorder] Human Rights Watch has specifically called on Jamaat and security forces to refrain from engaging in violent acts, referring to reports of Jamaat members attacking law enforcement officials, and law enforcement’s lethal reactions. [Human Rights Watch] The European Union High Representative for foreign affairs and security policy, Catherine Ashton, also called for peace, stating that there is no justification for violence. [European Union at UN]
The International Crimes Tribunal’s Establishment and Mandate
The Bangladesh government inaugurated the three-member tribunal on March 25, 2010, pursuant to the International Crimes (Tribunals) Act of 1973 (ICTA). [The Daily Star] At the same time, it also established a seven-member investigation agency and a 12-member prosecution team. Under the ICTA, the tribunal, which is actually a domestic court, has the power to try individuals, regardless of their nationality, who commit international crimes in Bangladesh, including crimes against humanity, crimes against peace, genocide, war crimes, or any other crime under international law. See ICTA, §§ 3(1), (2). Accused persons have the right to provide an explanation for any charge against him, represent himself or enjoy assistance of counsel, and to present evidence in his favor and cross-examine witnesses called against him. ICTA, § 17. The tribunal’s purpose is to punish those responsible for atrocities committed during the 1971 war.
Criticisms Leveled at the Tribunal
A great deal of controversy has surrounded the tribunal since its inception, with most criticism focused on the need for greater protections of the rights of the accused. Shortly before the ICTA passed, the government amended the Constitution of Bangladesh to limit the rights of those accused of international crimes, in particular exempting them from the prohibition against applying criminal law retroactively. [International Center for Transitional Justice (ICTJ)] Additionally, there is no clear path for the defense to challenge the tribunal’s jurisdiction or the constitutionality of the ICTA itself. [ICTJ; Crimes of War]
In March 2011, the United States war crimes ambassador Stephen Rapp visited Bangladesh and made suggestions to amend the tribunal’s procedure to bring it into compliance with international law. [New Age] Bangladesh subsequently adopted some of Rapp’s proposals in the Rules of Procedure. However, Mr. Rapp and human rights groups maintained that the changes were insufficient to meet international standards, calling on Bangladesh to better define the crimes enumerated in the ICTA, guarantee the defense sufficient time to prepare, and allow the accused to make interlocutory appeals. [US Department of State; Human Rights Watch]
More recently, United Nations human rights experts have called for safeguards against imposition of the death penalty by the tribunal. When Abdul Kalam Azad was sentenced to death after a trial in absentia, UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns reminded Bangladesh that “[i]nternational law requires compliance with the most stringent fair trial and due process guarantees in cases where death sentences are imposed,” adding that the State is required to comply with the International Covenant on Civil and Political Rights, to which it is a party. [UN]
UN Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, also questioned the tribunal’s partiality, citing reports that “[w]itnesses and lawyers for the defence have also complained about an atmosphere of hostility, intimidation and harassment.” [UN] These comments came after Nizamul Huq, a presiding judge in Mr. Sayedee’s case, resigned amid allegations that he was inappropriately consulting a Brussels-based attorney unaffiliated with the tribunal, and that he had prematurely determined Sayedee’s guilt before hearing the defense’s arguments. [Economist] The tribunal thereafter banned all public discussion of the case, and moved forward with its decision. [Economist] However, there were still serious concerns as to the fairness of the tribunal’s proceedings in that case.
Human rights organizations have also called on the Bangladesh government to reject proposed legislation which could retroactively increase sentences for those convicted by the tribunal. [Human Rights Watch; Amnesty International] The amendments to the law would allow the prosecution to appeal not only acquittals, but also sentences it feels are too light. The changes were suggested to allow the appellate court to overturn a decision imposing a life sentence on Abdul Qader Mollah, another Jamaat leader, and impose the death penalty instead.