Many lives were lost and destroyed during Bangladesh’s bloody struggle for independence from Pakistan in 1971. More than four decades later, Bangladeshis are baying for blood in the streets, demanding the lives of those they say committed grotesque crimes during that terrible struggle. The International Crimes Tribunal (ICT) in Dhaka, set up in March 2010 to try those responsible for these crimes, has been roundly condemned by international observers. It delivered its first two verdicts in the last few weeks. As predicted, these were convictions. Abdul Kalam Azad was sentenced to death in absentia, and Abdul Kader Mullah was “only” sentenced to life imprisonment. Hence the baying in the streets—it seems that justice means an eye for an eye, a life for a life. The Awami League government, which came to power promising long overdue trials for alleged perpetrators (who had metamorphosed into its political enemies in the Bangladesh Nationalist Party and Jamaat e Islami), has obliged, rushing through legislation to speed up the executions.
The problematic nature of the ICT process should not come as a surprise. Even before the process began, serious concerns were raised about the adequacy of the 1973 legislation under which the accused are being tried, constitutional limits on the rights of the accused, and the capacity of the judicial system to manage such a complex, demanding, and politicized process. Heightened tensions always accompany such trials, but the politicization in Bangladesh has been extraordinary, raising passions, clouding reason, and blinding otherwise seeing eyes to the obvious. Those criticizing the trials, just like those with alternative perspectives on what happened in 1971, have been condemned with a degree of vitriol seldom seen in similar trials, let alone in a democratic society. One British barrister advising the accused was even prevented from entering the country after voicing criticism.
The litany of complaints about the Bangladeshi proceedings dwarfs those from similar proceedings in Cambodia, East Timor, Iraq and elsewhere. Instead of delivering justice, the ICT will likely go down in history for some of the most egregious irregularities in modern international criminal proceedings. Human Rights Watch is demanding a retrial because of judicial musical chairs in the trial of Delwar Hossain Sayadee, which has left not one judge on the panel who has heard all the evidence. Complaints from the defense abound and go beyond what we usually hear. Hacked emails and Skype transcripts have revealed political pressure on the court and judges presuming guilt mid-trial. A long-time trial observer has documented unequal treatment of the parties, bullying and harassment of the defense counsel, and inadequate preparation time for the accused—and that is just the tip of the iceberg.
Bangladesh has given us the first example of a presiding judge caught flagrantly discussing the details of the case and the preparation of the judgment with a third party. Bangladesh has given us the example of Shukho Ranjon Bali, a prosecution witness turned defense witness who police allegedly abducted before he could testify and who remains missing. Bangladesh has given us the spectacle of judges who were previously freedom fighters or activists in the accountability movement and who had already convicted the accused in a “peoples tribunal” purporting to be independent and impartial in judging the same accused at the ICT. All this, supporters of the trials will allege, is fabrication—propaganda from those who support the “war criminals.”
The bloodlust in Bangladesh is an international matter, and the time for feeble diplomatic responses is over. Last year the Working Group on Arbitrary Detention found Bangladesh to be holding those accused before the ICT in arbitrary detention, and the UN Special Rapporteur on extrajudicial, summary, or arbitrary executions and the UN Special Rapporteur on the independence of judges and lawyers have jointly spoken out against the first two decisions. But these responses have not worked, and the High Commissioner for Human Rights and Secretary-General have been noticeably passive, We have left the days when this kind of travesty was within the sovereign domain of the state, and the international community needs to react before judicially sanctioned murder takes place and before protests against the process turn more violent.
The international community has not yet said what needs to be said: this process has been given a chance but it falls far short of basic international standards, and we oppose its continuation in this manner. We cannot claim to care about justice, human rights, fair trials, and due process but remain passive. The UN Human Rights Council needs to become engaged and could start by appointing an international commission of inquiry into the ICT and, beyond that, into the matter of accountability for the crimes of 1971. Justice must done, but this is not justice.