The recent hanging in Bangladesh of Abdul Quader Mollah for committing crimes against humanity during the 1971 War of Liberation is certainly a sad event. But courts are not mercy missions. Their job is to interpret the law and evidence presented to them. Mr. Mollah exhausted all appeals and a death sentence was the result.
Capital punishment, however undesirable from a human rights viewpoint, has yet to be outlawed. Many jurisdictions practice it. In 2012 alone, there were 682 executions in 21 countries including the U.S. with 43. About 30,000 people are on death row around the world in 2013.
In Bangladesh, the accused and the prosecution were given full rights of due process. Some critics have nitpicked at the tribunal’s procedures. But the egregiousness of crimes against humanity dictates that procedural justice must not outweigh the delivery of substantive justice. The pursuit of justice requires judges to ensure not only that no innocent person is punished but also that no guilty person is allowed to escape through the niceties of procedural justice.
Even the U.S. Congress has taken notice of the controversy. A resolution pending in the Senate co-sponsored by Sen. Dick Durbin (D-Ill.) asks some hard questions of the Bangladesh government, including about the tribunals. The questions are timely. The people of Bangladesh go to the polls Jan. 5 for what is likely to be the first of what could be a series of elections deciding the future of the Parliament, tribunals, and other issues.
My view — and the view of many Bangladeshis — is that the tribunals, though sometimes harsh in their judgements, deserve to continue to do their important work. Ultimately it is for the judges to strike a balance and the Bangladesh tribunal seems to have done that.
Another hotly debated issue in Bangladesh is whether Parliament can amend a law on a matter that’s already being tried. After Mr. Mollah was initially sentenced to life imprisonment, the Parliament changed the law so that both the defense and prosecution could appeal a tribunal’s sentence. The result, in the end, was the overturning of the life sentence and the imposition of capital punishment.
Parliament, being the law-making body under the constitutional separation of powers, can, in fact, enact law regardless of what is going on in the courts. Common law jurisdictions are littered with examples of parliamentary amendments on matters under judicial consideration — from India to Cambodia.
At the same time, the Bangladesh ICTs (International Criminal Tribunal) are national in character. It is inappropriate to assess a national trial process in the light of practice and experience in international trials. Bangladesh’s tribunals are run and overseen by very senior, experienced, and professional sitting judges of the Supreme Court.
In case after case that has come before the tribunals, the evidence presented has been overwhelming and convincing. The verdicts were based on sound information and careful procedures. Because of the huge amount of evidence presented by the prosecution, it was hard for the defense to rebut in many cases. But the defense’s pleading of identical grounds in every successive case despite reasoned rejections did not make much sense. The ICTs were merely going through the motions and defending indefensible in instance after instance.
The ICTs in Bangladesh represent the quest of humankind to combat terrible crimes against humanity. It is unfair to judge these trials by only highlighting and exaggerating their imperfections.
Critics should not lose sight of the ICTs many achievements in breaking the protective garb of impunity and delivering justice to millions of victims that the international community has failed to attend to. It is wrong for the naysayers to remain ignorant of the realities of these important international crimes trials. Their criticisms all too often are superficial and rhetorical and miss the larger legal points.
M. Rafiqul Islam is Professor of Law, Macquarie University, Sydney, Australia