By Ehsan A Siddiq
Since August 2024, Bangladesh’s media landscape has taken a turn, with calls to overhaul the International Crimes (Tribunals) Act, 1973, to ensure fair trials for those responsible for the unlawful killings of July and August 2024. One commentator has argued that the current judicial appointments at the International Crimes Tribunal (ICT) lack the international expertise needed for true justice. The same commentator has labelled Md. Tajul Islam’s appointment as Chief Prosecutor “a terrible decision”. Although, I may not agree with some of the criticisms, this media openness about the flaws of the ICT, was long overdue. Open discussion can only strengthen the ICT’s credibility and prevent a return to the days when critics were threatened with contempt charges. But as a defence counsel, who appeared before the ICT often in very trying circumstances, I cannot help but notice this refreshing shift in the media’s stance—and wonder whether this shift has been motivated by a genuine pursuit of justice or simply by changing political interests.
What is especially curious about this sudden wave of interest in the ICT’s legal framework is the enthusiasm of the Bangladesh media for criticism—an enthusiasm notably absent just a few months ago. Before August 5, 2024, the ICT was practically bathed in praise. Take M Rafiqul Islam, who, just a week before the July revolution, staunchly defended ICT trials against criticism from the UK Supreme Court, dismissing their take as “Eurocentric” and rooted in “European imperial values.” Not too long ago, outlets like The Daily Star ran articles which argued that international criticism “hurt the sentiment of the people of Bangladesh.” Fast-forward to August 2024, and these sentiments appear to have done a full 180.
Since 5 August, there has not only been an increase in criticism of the legal framework of the ICT, but the media too have been more willing to publish such criticism. For 15 years, the ICT largely operated without any serous criticism from the local media. Critical publications were rare and usually forced, when Human Rights Watch, Amnesty International, or the foreign media aired concerns. Investigative journalism was nearly non-existent. This reticence to dig deeper was especially surprising given that most academic assessments have been scathing. The ICT had been labelled as “one of the darkest instances of transitional justice,” and respected voices like Desmond de Silva QC declined offers to support it, seeing the trials as political. Lord Carlile KC has gone so far as to accuse the ICT of being a tool for imprisoning and executing political opponents, and Geoffrey Robertson KC has highlighted serious fairness issues in his detailed report.
It is true that during the tenure of the last government expressing views on the trials was risky business It could lead to imprisonment for contempt of court. Defence lawyers have had to leave the country. Lobbying and advocacy for fair trials have led to cases of enforced disappearances. But there was no bar against faithfully reporting court proceedings which were public. The media practised a form of self-censorship, rarely reporting defence successes and often sweeping prosecution failures under a generous carpet. Defence victories were rare news, while prosecution missteps quietly disappeared. As a defence lawyer, I often marvelled at the skilful edits that scrubbed witness statements clean of inconvenient truths, helping the ICT and the government execute people with hardly a wrinkle of protest from the press despite glaring injustices.
The “safe house” scandal quietly slipped by much of the media, largely ignored despite its implications. The prosecution tried to submit statements made by witnesses to the ICTs own investigators directly as evidence, claiming witness attendance would be too costly and time-consuming. But as it turned out, many “missing” witnesses were actually locked up in a so-called “safe house” a few miles from the ICT—some of whom refused to lie under oath and some were not trained sufficiently to withstand cross examination. Records, including a general diary, attendance logs, and food registers of the “safe house”, revealed the extent of the cover-up. This scandal would have toppled any credible trial had the media covered the scandal properly.
Once again, the media did very little investigation into the abduction of a key defence witness, Sukharanjan Bali from the gates of the ICT in 2012. The Chairman of the ICT, seemingly complicit in the incident, refused to allow defence lawyers to review the CCTV footage to identify the individuals responsible for the abduction. However, the story received significant coverage from foreign media and reporters some of which trickled into the local media.
The only scandal the media gave some attention to was the Skype Scandal—mainly because the Amar Desh newspaper had already been leaking reports on it. The ICT Chairman, Justice Md. Nizamul Hoque had been secretly collaborating with Belgium-based academic Ahmed Ziauddin, even redrafting prosecution documents to add heavier charges against the accused. There was also evidence of improper communications with the prosecution. But most of the media shied away from exploring these revelations, downplaying the glaring breaches of fair trial standards. Ultimately, these Amar Desh leaks led to the ICT Chairman’s resignation, marking the scandal’s dramatic conclusion.
Bangladesh academics who supported the ICT during the previous regime, have had a difficult time justifying its poor track record. But they have still put up defences — graciously covered by the press. The attitude of most of these academics is reflected in Bina D’Costa’s article on War Crimes, Justice and the Politics of Memory. D’Costa adopts a condescending tone observing how “well-groomed, highly educated and articulate Jamaat loyalists and lawyers have used the rhetoric of international norms and standards to cast doubt on Bangladesh’s ability and willingness to conduct a fair trial” as though expecting them to show up unkempt, quoting scripture instead of legal principles. No doubt, she had pictured the typical Jamaat lawyer as a village mullah, dusty robes and all, and found it difficult to imagine them arguing on the finer points of international law. Her critique conjures up images of the British disdain during the Raj for Indians who dared to speak English well, depicted wonderfully in Orwell’s Burmese Days. It irks D’Costa that the accused are relying on international law to challenge the trials, and if she could, she would likely prefer to deny them this opportunity.
D’Costa also seems to suggest that the accused would be convicted regardless of whether fair trial standards were adopted, thanks to “overwhelming evidence.” This myth has been peddled by ICT supporters, despite the fact that at the ICT, the evidence was so shaky that restrictions on cross-examination and a diluted Joint Criminal Enterprise definition had to be introduced. Then there is the wild claim that news reports from 1971 alone could convict the accused. This argument is so flawed that it needs to be dealt with in some detail. Firstly, the prosecution failed to provide any newspaper report which described any of the accused committing crimes against humanity. Secondly, while reports of the accused making speeches in support of the Pakistan Army were found, these alone couldn’t establish crimes against humanity. The prosecution needed to demonstrate that these speeches instigated specific criminal acts. Legally, this required proof of a “substantial connection” between the speech and a particular offense. In each case, however, the prosecution failed to provide evidence showing that any such connection existed.
What is most troubling is the selective nature of recent concerns over the inadequacies in the law. There is an admission now that the trials were less than fair, but there is no call for amendments to be made to the law for re-examining the miscarriages of justice. Six individuals from the Bangladesh Nationalist Party and Bangladesh Jamaat have already been executed based on questionable interpretations and false evidence (and in one case at least this evidence was created by the Appellate Division). In 2013, Abdul Quader Molla became the first politician to be executed under the International Crimes (Tribunals) Act, 1973. To impose the death penalty on him, the Appellate Division altered the rules of cross-examination, disapplied customary international law, and reinterpreted the principles of joint criminal enterprise. But whilst there is a call for updating the law and even importing foreign judges there is no suggestion to amend the law to correct the miscarriages of justice. If the law is flawed, shouldn’t every conviction under it be re-evaluated? Introducing an amendment to establish a Criminal Cases Review Commission, like in the UK, would be a sensible step to address these injustices.
I am all for fair trials and welcome foreign expertise. But when certain sections of the media publish articles or opinions demanding fair trials 15 years after the ICT was established and that too only when the prospect of Awami League leaders being tried for the deaths of July and August 2024 looms large, the honesty of such demands needs to be examined. A genuine demand for amendment of the law should have been accompanied which a demand for changes to rectify past miscarriages of justice.
Finally, the current criticisms of Bangladesh’s International Crimes Tribunal (ICT) echo the very issues raised over a decade ago by defence lawyers and human rights groups, which were largely ignored. The new Chief Prosecutor, based on his past experience as defence counsel is pushing for many of these amendments. There is nothing original about these recent demands for changes in the law. Abdur Razzaq in his chapter in “Trials for International Crimes in Asia” in 2015 stressed that foreign judges were crucial for ensuring fairness and credibility at Bangladesh’s International Crimes Tribunal (ICT). In the Supreme Court he also argued for striking out certain provisions of the constitution which were not only unconstitutional but would hamper a fair trial as it denied the accused fundamental rights. Ten years later the same demands are being made. Although these demands were more relevant then, when expertise was required to determine liability on the basis of old evidence. The Tribunal did not have the training to apply complex evidentiary rules (hearsay, judicial notice, written witness statement rules, etc) to decades-old cases and very often made serious mistakes. Now, with a decade of flawed jurisprudence and a tarnished reputation, it seems the calls for fair trials are for the benefit certain political interests rather than a genuine commitment to justice. Ultimately, it is hard not to see this push though overdue is somewhat selective in its motivations.
As the trials for the killing of July and August 2024 begin, the media should be encouraged to report on inconsistencies and flaws in the law and in the trials. However, as they do so they should reflect on their failures (and often deliberate refusal) to report on gross miscarriages of justice in past and whether in failing to do so they too contributed to the injustices of the ICT.
*The author is an Advocate of the Supreme Court of Bangladesh. He was a defence counsel at the International Crimes Tribunal of Bangladesh and has been enrolled as counsel by the International Criminal Court, The Hague.