By Barrister Abdur Razzaque
In 2009, nine months before the beginning of the formation of the International Crimes Tribunal, I went to the office of UN’s Human Rights Commission in Geneva. There I heard that about two weeks previously the chairman of the Human Rights Commission, Ms Navi Pillay, had expressed her concerns in a written letter to the government of Bangladesh that, it is not possible to ensure fair justice for the accused under the International Crimes (Tribunal) Act of 1973. Ms Pillay is a top-class international legal expert. She was a prominent judge in Rwanda’s War Crimes Tribunal. The Bangladesh Desk Officer refused to provide me with a copy of that letter. The Bangladesh government did not publish the letter to the public. I did not get a copy of the letter from Renetta, either.Anticipating the start of the trial of war criminals, I had been preparing for it since 2009. (1)—-
The first and primary duty of a lawyer is to analyse the law thoroughly. With this purpose I began to consult for opinions from best lawyers in the world. I took opinions from 5 foreign legal experts. They are: the renowned British constitutional expert Michael Beloff QC. He was already informed about the constitution, law and legal process of Bangladesh from before. He was our main counsel at abroad in the citizenship case of Professor Gulam Azam two decades earlier; Mr Soli J Sorabjee ( A veteran Indian senior lawyer and once a renowned Attorney General);Prof. William Schabas, a professor at the Galway University in Ireland and an expert in human rights laws; Gregor Guy-Smith, an American citizen and an expert in international criminal law. Their unanimous opinion was that the act of 1973 is a domestic act and falls far below the International Standards, and fair trial is not possible under this act. In addition, in order to know more about the historical context, I took the opinion from an octogenarian Australian citizen Prof. Otto Triffterer, who is the dean of law faculty at Salzburg University and who was involved in drafting the [original] 1973 act. (2)——-
Bangladesh attracted international attention after formation of the tribunal in March 2010. Everyone sided in favour of the trial. But with one condition: the trial must be transparent and comply with international standards. The first initiative was taken by veteran member of the British House of Lords and a sincere friend of Bangladesh, Lord Eric Avebury. With his initiative the International Bar Association’s War Crimes Committee gave an opinion in 2009. They pointed at 14 errors and flaws in the tribunal act. Afterwards, one by one, letters were written to the government of Bangladesh by USA’s special ambassador-at-large Stephen J Rapp ( dated 21 March 2011), International Centre for Transitional Justice (13 March 2011), Human Rights Watch (18 May 2011) and Amnesty International (21 June 2011). They all have pointed out flaws in the act and asked for correcting them. Otherwise, they have let it known that the trial will be questionable and unacceptable to the international community. Such views from the international community failed to have any influence whatsoever on the Bangladesh government. (3)—
The war crimes law is a very complex law. This law is part of the international law. Possibly for this reason the Bangladesh government said in 1973 that the accused would be allowed foreign lawyers if they wish to have so. In 2011 we wanted to bring 3 renowned British experts on war crimes law to Bangladesh as defence counsels. We were not given this opportunity. We have formed a fairly strong team of domestic lawyers who have regularly been assisted by 3 British experts based in London. Still after that we have been struggling to provide a defence of international standards. But the state party have never taken any initiative to strengthen the prosecution team or to bring any foreign lawyers. This is very mysterious; this mystery might be revealed someday.The Nuremberg and Tokyo tribunals formed in 1945 were military tribunals. During the Bosnian war in 1993, nearly 50 years after the Nuremberg, international tribunal was formed for former Yugoslavia by a decision of the Security Council under the UN charter. (4)———
Afterwards, Rwanda tribunal was formed in 1994, International Criminal Court (ICC) was established in 1998 (Bangladesh is a member of this court too), Special tribunals were formed in East Timor in 1999, in Sierra Leon in 2000, in Cambodia in 2001, and in Lebanon in 2007. Apart from Nuremberg and Tokyo tribunals, all of these tribunals have accepted the International Human Rights Charter 1948 and the International Convents on Civil and Political Rights 1966. These two charters were not adopted at the time of Nuremberg and Tokyo tribunals.The Tribunal Act of Bangladesh does not recognise the fundamental and constitutional rights of an accused. These rights were stripped away by the 1st amendment in the constitution (I was delivering at the tribunal sometime in mid-2012 when one of the honourable judges told me: ‘Your client is a 3rd class citizen under the consideration of fundamental human rights’. He has said the right!). This is the contradiction between the war crimes law of Bangladesh and the international war crimes law. For this reason and without any exception, the international community have always been critical of the Bangladeshi law. (5)——-
On the hand those who are determined to carry out the trial under the Bangladeshi law have completely ignored and disregarded post-Nuremberg developments in the international law. This is unrealistic and unacceptable to the international community. As a result, the Bangladesh Tribunal is completely controversial to the World Community. The tribunal has lost its any remaining credibility in the Western world after publication of ‘Skypegate scandal’ in the Economist and the Amar Desh, exposing to the public serious collusion between some judges, prosecution and ministers. This trial is very controversial in the Muslim world, too. The Turkish President Abdullah Gul in February 2010 and Prime Minister Erdogan in November of that year said to the Bangladesh government during their visits that this trial should not be the 1st priority among government’s actions. The Prime Minister of Bangladesh and the Foreign Minister visited Ankara in 2012. This issue consumed most of the time during an intimate meeting of the prime ministers and foreign ministers of two countries. After that, the Prime Minister visited Qatar at the invitation of US-Islamic World Forum. (6)—–
During that visit Islamic leaders from various countries expressed to the Prime Minister, in the presence of the Qatari Prime Minister, their displeasure about the war crimes trial. We have learnt these facts from very reliable sources. It is well known to everyone that the President of Turkey wrote a letter to the President of Bangladesh requesting to stop the trial of Prof Gulam Azam, causing a diplomatic rift between the two countries. In the last OIC conference held in Cairo foreign ministers of many countries raised this matter to the foreign minister of Bangladesh. In February of this year the OIC Secretary General and the Malaysian opposition leader Anwar Ibrahim, and on 2nd March the leader of the Tunisian ruling An-Nahda party Mr Rashed Ghannouchi criticised the tribunal and expressed grave concerns about the death penalty given against Delwar Hussain Sayeedi. As far as we know, Saudi Arabia has also expressed its concerns to Bangladesh. Therefore, it can be undoubtedly said that this trial is questioned in large part of the Muslim world. On 5th February the tribunal gave life-sentence against an assistant secretary general of Jamaat, Abdul Kader Mollah. (7)—-
Soon after that demand for capital punishment was raised from Shahbag. On 28th February the tribunal gave death-sentence against a deputy ameer of Jamaat, Mawlana Delwar Hussain Sayeedi, inflaming country-wide protests and agitation, violent in some places. At least 150 people have died. The police have used disproportionate extreme force and shot indiscriminately. Both public and private properties worth millions were destroyed. People have become fearful about an uncertain future. Bangladesh has today become a place of flames and blood.In such a situation, most observers believe that any more verdicts [from this tribunal] or implementation of any of its verdicts will cause serious instability and violence throughout the country. On 7th March, British magazine the Economist published this headline, ‘Unrest in Bangladesh: a nation divided; a flawed tribunal opens old wounds and threatens Bangladesh’s future’. [Economist link] The common aim of all war crimes trials is to end a sad episode of the past and to begin a new era; to build a national unity. This was the right outcome from tribunals of Nuremberg to Yugoslavia, from East Timor ICC to Sierra Leon or Cambodia. (8)—-
However, it is absolutely clear that such an outcome is totally impossible in the case of Bangladesh through this tribunal. This trial/tribunal has been rejected outright by the international community, has been questioned by the Muslim world, has seriously divided the nation and polarised the country; this trial can serve some temporary political purpose for some vested interests, but such a trial can not bring any long-term benefit to the nation and the country. Already on 4th March the Human Rights Committee of England Bar released a statement calling for suspension of the trial process and a neutral enquiry into concerns raised by international communities. On 18th March in a seminar held at the British House of Commons titled ‘Spotlight on the Bangladesh International Crimes Tribunal’, the USA special ambassador Stephen J Rapp called on the Bangladesh government to guarantee full transparency and fairness in the trial process. (9)——–
Ambassador Rapp further said that a pre-trial consensus among all political parties could have avoided any controversy and protest after the verdicts.In such a situation, the only solution to this crisis is to raise the standard of the Act to the international level and to involve the international community with the trial process. Of course, a national consensus is needed for this. No party should object to this proposal. The main opposition party BNP is already supportive of this. The Jamaate Islami should also agree to this proposal. Now, if the government agrees to this then a national consensus can be reached. But the question is whether there would be any change in government’s attitude. If there is no change in the attitude of the government then this trial will inevitably divide the nation even further and push Bangladesh towards a precipice- there is no doubt about this. Author: Senior lawyer at the Bangladesh Supreme Court and the chief of the defence team.
Source: BDINN