Bangladeshi Tribunals Are Characterized By Vengeance, Not Justice

Toby Cadman and Lennart Poulsen Defense Team, Bangladeshi International Crimes Tribunal
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Mr. Mohammad A. Arafat, of the Independent University, Bangladesh, who also happens to be the executive director of the Shuchinta Foundation, an organization that claims to provide ‘awareness’ about the trials before the Bangladesh International Crimes Tribunal recently published an article in the Daily Caller entitled “Bangladesh War Crimes Trials Follow Evidence, Not Politics.” The article is interesting in that the author manages to ignore every criticism of the tribunal made by the international community (of which there are too many to replicate here).

It also manages to ignore the wholesale undermining of the judicial process through government interference and judicial corruption, which has been clearly established and widely reported in the international press. As such, it manages to ignore the real motivation behind the tribunal. A motivation steeped in entrenched political bias and historical animosity. The title of the article is therefore not only inaccurate, it is a gross misrepresentation of how these trials have been, and are still being, conducted.

For the sake of clarity, the international community widely supported the initiative of the incumbent Awami League Government to establish a national war crimes tribunal to bring an end to a culture of impunity that has pervaded Bangladesh politics for more than four decades. What it did not count on, however, was the black hole of justice that followed that resembles more the Stalinist purges of the 1930s than the Nuremberg trials upon which it purports to be based.

The author is quite correct that the victims of the crimes committed during the 1971 War of Liberation war deserve justice, and that “the passing of time cannot wipe away the horrors of that period.” It is important that those responsible for the undeniable crimes that were committed in the 1971 conflict are held to account. However, justice must be real, it must not be a hollow gesture filled with political rhetoric and influence.

One must question why, if it was solely the quest for justice that brought about the tribunals, have the Awami League waited until now to do so? The Awami League has previously formed governments since 1971, and yet no domestic tribunal was commissioned. We do not suggest that those who are accused of such crimes should not face justice, however it must be done in a manner consistent with international standards aimed at determining individual criminal responsibility, not collective guilt. The tribunals have singularly failed at embracing such a notion and the judgments have all been littered with provocative statements attacking the political parties and groups that opposed liberation. For example, in the case against one of the accused, Professor Ghulam Azam, his mere association with a political party during the time was the primary basis for his conviction.

It is important to note that although making claims that the process is driven by evidence and not politics, not a single investigation has been initiated into any possible conduct by members of the pro-liberation forces. In fact to make such a statement is considered seditious or at the very least, contemptuous. There is even a presidential decree that grants absolute immunity to any person who fought for liberation. This in itself speaks volumes.

It is also no accident that the author uses the deliberately provocative imagery of the Holocaust to justify his position. The comparison of Jamaat-e-Islami to the SS during World War II is as much wholly inappropriate as it is misleading. It further demonstrates the real intent behind the trials – to demonize an Islamist political movement that opposed liberation from Pakistan in 1971 as a political objective. One only has to cast a cursory glance over the judgments already delivered to read statements targeting Jamaat as a party of ‘war criminals.’ Such statements were openly declared by cabinet ministers and even Prime Minister Sheikh Hasina Wajed herself who in her public addresses often referred to those accused as ‘war criminals,’ promising swift conclusions and executions. This was before any of the accused were in fact found guilty of any crime.

The author tries to draw a comparison between a party in 1971 and a party in 2014 to justify the government targeting it as a political party. A party cannot be judged today on the problems of history. History is littered with instances of groups or parties being criticized for their past actions. This does not mean that their modern day agenda is the same, nor does it mean that it should continue to be punished for its history. There is no evidence to suggest that Jamaat is a terrorist organisation and therefore such extreme measures are not justified. The only result that such labeling will achieve is heightened tensions, it will not address any of the actual issues, nor will it provide proper justice for the victims of the 1971 war and their relatives.

The article draws reference to the hundreds that have died during the various political demonstrations over the past twelve months; however, he has failed to reference the documented cases where members of the security forces and those loyal to the ruling Awami League have been alleged to have committed such crimes. It is quite clear that there is increasing violence on the streets of most major cities in Bangladesh, what the author fails to point out is that these matters are now being considered by the Prosecutor of the International Criminal Court in The Hague.

It is clear therefore that the article is not balanced. It is wholly one-sided in favour of the Awami League and paints a misleading picture. The trial of Sayedee is a prime example of this bias, and further, the political bias of the tribunal. The author recites the allegations against Sayedee, however, what he does not mention is that a witness in the case, one whom had complained that his statement presented to the tribunal was not his own, was abducted by the security services from the steps of the court, on the morning he was due to give evidence. Having been held in custody and repeatedly tortured by the security services, he was then transported to the Indian border where he was left for dead. The witness was arrested by Indian law enforcement and subsequently held in an Indian prison for months on end.

The author further neglects to mention that the widow of one of those victims whom Sayedee is said to have murdered had previously made statements of complaint in which she named those responsible for the crime, and yet at no time did she mention that Sayedee was responsible. This witness was not brought to court, despite the fact confirmation had been received that her whereabouts were known to the prosecution.

The points above are just two flaws in one isolated case. Curiously, no mention is made of the Skype recordings between a former presiding judge and third parties, members of the government and members of the prosecution which was published in November 2012 in the Economist, exposing the scope of the corruption that has been the defining hallmark of the tribunal since its inception. This was a revelation that received widespread attention, and prompted a chorus of international condemnation.

To recount all flaws apparent in just these two cases alone would result in this article being far too long for publication, however, the simple fact is that the tribunals have been condemned internationally by a wide ranging number of monitoring groups, including Human Rights Watch, Amnesty International, various members of the UN and members of the U.S. administration. One of the responses of the Bangladeshi court was to issue contempt proceedings against the Human Rights Watch and an independent British journalist David Bergman.

As is noted at the outset of this article, it is wholly appropriate for the alleged perpetrators of such crimes to face a judicial process. However, without a credible process being implemented, without rules of evidence being properly adhered to, without a process being free from political interference, can that really be said to be justice?

What must happen now, is for the tribunals to be immediately halted. All those convicted thus far must have their convictions set aside. A new tribunal must be commissioned, a truly international tribunal with the relevant oversight and in a neutral third party country. This will then allow a credible process to be followed. Without this, the process at present, and the verdicts that follow, are nothing more than a hollow sham of justice. Further, such verdicts are not only an injustice to those accused, but an injustice to the memory of the victims and to their families who are not being given an opportunity for closure. The controversy surrounding the current tribunals will not heal old wounds – it will only serve to deepen them.

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Toby Cadman and Lennart Poulsen