A Miscarriage of Justice in Bangladesh

by Ronak D. Desai

Bangladesh executed two senior opposition leaders earlier this month for perpetrating crimes against humanity during the country’s savage 1971 war of independence from Pakistan. Salahuddin Quader Chowdhury of the Bangladesh Nationalist Party and Ali Ahsan Mohammad Mujahid of the Jamaat-e-Islami party were hanged at Dhaka Central Jail despite ongoing concerns about the integrity of the legal proceedings against them.

A special war crimes court established by the government in 2010 – the Bangladesh International Crimes Tribunal (ICT) – convicted the two men on charges of committing torture and genocide during the war. Although initially erected as a mechanism to address the brutal atrocities that characterized the country’s struggle for independence, the ICT has failed to help facilitate the national reconciliation that has eluded Bangladesh since its inception.

On the contrary, consensus has emerged that the tribunal has become increasingly politicized, an instrument through which the governing Awami League is prosecuting its political enemies. Plagued by a host of procedural and substantive deficiencies, the ICT has failed to meet well-established standards of international law and justice. The flawed proceedings have only deepened the political and ideological divisions afflicting the country. The two recent executions have put into sharp focus the grossly deficient legal and trial processes in place at the ICT. They have also prompted familiar questions about whether developing nations can administer international justice effectively and impartially.

The horrors that accompanied Bangladesh’s struggle for independence more than forty years ago have few parallels in modern South Asian history. Between March and December 1971, the Pakistani military embarked on a brutal military campaign to crush a nascent independence movement in the country’s eastern wing. According to some estimates, West Pakistani forces and local collaborators killed 300,000, raped 200,000 and forced 10 million refugees to flee across the border to India to safety. The Bangladeshi government puts the death toll at well over a million. An immense cannon of evidence indicates Pakistani forces and local militia systematically targeted East Pakistan’s male population, intelligentsia and Hindu minority, leading many to conclude that genocide had been perpetrated against the Bengali people.

Although the newly independent state of Bangladesh initially planned to establish a war crimes court shortly after the war, plans to do so were abandoned in favor of a broader national reconciliation campaign. In 2008, Sheikh Hasina, daughter of Bangladesh’s founding father, swept into power after promising to establish a special tribunal tasked with bringing to justice those individuals responsible for committing crimes against humanity and violating international law during the 1971 war. The ICT was established two years later to investigate war-time atrocities and bring the perpetrators to justice.

Although expectations surrounding the new war crimes court were initially high, a host of legal defects quickly rendered the tribunal vulnerable to widespread criticism that it had failed to conform to international standards. Most of the accused are members of Jamaat-e-Islami, an Islamist group aligned with the country’s primary opposition party. ICT judges have been accused of colluding with the court’s prosecutors. The court’s rules of evidence are inconsistent with international norms and considered skewed heavily in favor of the prosecution.

Chowdhury and Mujahid’s prosecutions reflect some of the tribunal’s serious shortcomings. Prosecutors alleged that Chowdhury had accompanied the Pakistani army on a village raid in April 1971 that resulted in dozens of Hindus being executed. Mujahid was accused of leading a militia that targeted the country’s intelligentsia during the final days of the war.

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But the ICT prevented Chowdhury from calling witnesses that could have supported his alibi that he was out of the country at the time the crimes were committed. According to Human Rights Watch, Mujahid was sentenced to death for directing his subordinates to commit crimes even though no subordinates testified at trial or were even identified. These deficiencies suggest that the accused have been deprived of their most basic due process rights.

American officials have criticized the proceedings in Bangladesh. Members of the House Foreign Affairs Committee in the United States House of Representatives characterized the tribunal’s process as “deeply flawed” and asserted lawmakers were concerned by reports that “democratic space is shrinking” in Bangladesh. Ambassador Stephen Rapp, who served as the State Department’s ambassador for war crimes until last summer, said it was “disturbing” that Chowdhury had been denied the right to call alibi witnesses.

The acute problems surrounding the ICT have once again prompted difficult questions about whether countries like Bangladesh can adequately adequately prosecute war crimes. For those hoping the special war crimes court in Bangladesh could serve as a new model of international justice, capable of providing closure to victims and their families, the ICT has proven a profound disappointment.

Source: Forbes