The trial of Jamaat-e-Islami and BNP leaders in Bangladesh as war criminals has divided the Muslim country. Supporters of the ruling Awami League government alleged the arrested opposition leaders were behind the killings, rapes and other atrocities that occurred during the 1971 liberation war while opponents insist that the trials are politically-motivated as the Hasina government wants to weaken the opposition and continue in power for several years.
Toby M. Cadman, a renowned international barrister and an expert on war crimes tribunals, has called upon the Organization of Islamic Cooperation to hold an international conference either to reconcile the two belligerent groups in Bangladesh or pressure the government to conduct fair and transparent trials.
According to him, the Bangladesh International Crimes Tribunal (ICT) falls short of international standards and violates norms of fair trial spelled out in the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, both of which Bangladesh is bound by.
Speaking to Arab News, he recalled a statement made by Sheikh Mujibur Rahman, a former prime minister and father of Hasina, that Bangladeshis are a forgiving nation and that Bangladesh should look to the future not the past in the interest of peace and reconciliation. This was principally the reason for the trials being abandoned in 1973 and resulted in a tripartite agreement between India, Pakistan and Bangladesh.
However, Cadman believed that there should be a judicial process, but that process should be conducted in accordance with universal principles of due process.
Cadman said his recent visit to the Kingdom was aimed at mobilizing international support for preventing what he called “summary executions” of the jailed opposition leaders, including former Jamaat leader Professor Ghulam Azam, Delewar Hossain Sayedee and the present Jamaat president Motiur Rahman Nizami. He called upon Saudi Arabia and other Arab donors of Bangladesh to take immediate steps to ensure a fair trial for the country’s Islamic leaders in accordance with international law.
Cadman said international organizations such as the UN Office of the High Commissioner for Human Rights, Amnesty International, the International Bar Association, Human Rights Watch and the International Center for Transitional Justice have expressed their concern over the way the ICT has been operating and urged the Dhaka government to abide by international law and protect human rights of accused persons facing trial.
The United Nations Working Group on Arbitrary Detention concluded earlier this year that all the accused before the ICT are being held arbitrarily and in breach of the international law, the lawyer pointed out. He urged the OIC’s human rights commission to assess the ICT’s working practices and make sure it operates in accordance with international law. He requested the OIC secretary-general to contact the Bangladesh prime minister to raise this issue as a matter of priority.
Cadman insisted that the trial should have been conducted by an international criminal tribunal as people accused of war crimes included not only Bangladeshis but also members of the Indian and Pakistani military and civilian leadership. “There were massive crimes committed by all sides including India and Pakistan. I believe that it should be the subject of an international tribunal because the crimes not only involve the citizens of Bangladesh but also other nationals.”
Cadman wanted prompt action from the international community to prevent unjust judicial proceedings.
“Expressing concern will not be enough. The international community should take quick action to stop the injustice being committed against Jamaat leaders,” he said. Targeting a reputable Islamic party will have dire consequences and will affect Bangladesh’s reputation in the Islamic world, he added.
Cadman, who is a defense adviser for the Jamaat leaders, said he does not expect any justice from the tribunal in light of its present mode of operation. “We cannot expect justice being done for our clients unless the tribunal laws are urgently amended in accordance with the recommendations of the international organizations and Ambassador-at-Large for War-Crimes Issues, Stephen J. Rapp.”
Bangladesh has banned Cadman from entering the country after he had spoken publically against the situation in the country. “I realized that I have become an irritation for the government as I have been criticizing a process that they deem is in accordance with international standards and bring justice to victims, which is quite far from the actual situation,” he said.
Referring to his meeting with EU Parliament members, Cadman said: “I was trying to convince the international community that what is going on in Bangladesh is a grave miscarriage of justice. If they pass death sentences, which they intend to and execute the Jamaat leaders following trials in breach of proper standards, it would amount to summary execution because the trials have been unfair,” he explained. Cadman said the EU had insisted that the judicial process in Bangladesh should comply with international legal standards. It had also urged Bangladesh to abolish death penalty.
Spelling out the evidence to prove that the ICT does not comply with the international law, he said: “The present law in Bangladesh is outdated; there are no clear definitions for war crimes; prosecution had called only a small number of witnesses and few of whom are able to provide any direct evidence; the judicial procedures lack transparency in many respects; we cannot challenge the jurisdiction of tribunal, the legislation, the appointment of judges and the tribunal’s decisions; the same judges are conducting investigation, issuing decisions and reviewing their own decisions; and there is a very limited time for the defense to prepare.” Cadman said the Tribunal has arrested those leaders who may have opposed independence.
“Opposing independence is not a crime,” he pointed out. He agreed that the Hasina government was showing its political vendetta by arresting the leading members of Jamaat and BNP. “It is actually punishing the Jamaat for siding with the last BNP government. If the government wants to end the culture of impunity, it should depoliticize the judicial process and appoint international judges and prosecutors, and there should be a foreign council for the defense and government members should stop making comments in breach of the presumption of innocence.”
Cadman called for a completely fresh review of the whole proceedings of the ICT. “I would be failing in my duty as a member of the Bar of England and Wales if I did not do everything possible to support my clients. I want them to be acquitted following a fair trial.” He stressed the need for educating the international community about the grave situation in Bangladesh.
Speaking about the oldest defendant, Professor Ghulam Azam, he said there is no reasonable basis for not releasing him on bail. “Azam is not in a position to influence the proceedings or witnesses. We hope he would be released soon to be in the care of his family. Azam and the other Jamaat leaders are well respected members of their community and deserve better treatment,” he added.