The Appellate Division of the Bangladesh Supreme Court has dismissed the appeal of former Bangladesh Jamaat-e-Islami Assistant Secretary-General, Azharul Islam, for his alleged involvement in the “killing mission” in Rangpur during Bangladesh’s War of Liberation.
Guernica Co-founder Toby Cadman acted for Mr. Islam during his trial and has raised a number of serious concerns as to the fair trial procedures before the now highly discredited Bangladesh International Crimes Tribunal and the failure of the Appellate Division of the Supreme Court to properly consider the legitimate concerns as to fair trial guarantees, prosecutorial and judicial misconduct, lack of credible and reliable evidence and the failure to apply basic principles of international humanitarian and international human rights law.
It is of particular relevance that over thirty petitions have been filed with the UN Special Procedures Branch alleging instances of arbitrary detention, lack of fair trial guarantees, lack of judicial independence being compromised etc., in terms of individuals who have appeared before the ICT. Each and every one of those petitions have been upheld by the relevant Working Group or Special Rapporteur, and on each and every occasion, the Bangladesh Government has ignored the finding, and refused to adopt any reform to the procedures of the International Crimes Tribunal.
It is quite clear that the International Crimes Tribunal, and the incumbent Government, has been roundly criticised for its conduct in what can only be described as a flagrant denial of justice and an intention to circumvent the rule of law.
It is quite clear that during in 1971 there were crimes committed on all sides of the conflict. As with other conflicts, the commission of international crimes demands a response that is aimed at holding those persons criminally accountable in a court of law through a process that is transparent and credible. Victims on all sides of the conflict deserve a process that is aimed at justice and accountability. Regrettably, we have not seen such an approach in Bangladesh. What we have seen can only be described as a political purge.
Despite being a welcomed development in principle, and an opportunity to both offer justice and reconciliation domestically, as well as further the cause of international justice internationally, it has done neither, and this is solely because of the manner in which it was both developed, and its practical application.
It is now clear that the Tribunal was never about offering justice or ‘closure’ to victims of the conflict. Its intention, was to further a position espoused by the Awami League, ensure that historical prejudices and anger remained, and further, to seek to undermine any political opposition to such an extent, that Bangladesh would become a de facto one party State.
The most basic principles of international humanitarian law have been consistently violated during the trials. Given the unfairness of the proceedings and the gravity of the due process violations, the verdicts must be considered contrary to the standards set out in international human rights law. The death penalties imposed therefore, amount to summary or arbitrary executions.
The Appellate Division of the Supreme Court upheld the death sentence handed down by the International Crimes Tribunal on three charges involving murder and genocide. Subsequently, the Court also affirmed the tribunal’s five-year prison sentence on charges of abduction and torture.
It is deeply regrettable that the decision of the Supreme Court fails to address the serious violations committed once again by the International Criminal Tribunal and once again is consisted an affront to justice focused more on punishing political opponents than it is on achieving justice and accountability.
Despite legislation being in place promising that trials would be fair, it is more than evident from the trials that have taken place, that the assurances have been anything but fulfilled. Modelled upon international tribunals such as those governing the conflicts in former Yugoslavia and Rwanda, the Tribunal has lacked the modern rules of evidence and provisions to ensure that defendants were properly represented, including mechanisms in place for objecting to judges who were partial or lacked independence, amongst many other failings.
Despite any hopes of grandeur and deliverance of justice that one might have had for the Tribunal, it is little more than a façade designed to strip away all of the constitutional protections for the most basic of human rights. It is founded upon legislation that has failed to move forward and conform to the international legal and moral standards that it purports to follow and be based upon.
When one turns to consider the rules of evidence and procedure that govern any criminal proceedings before the Tribunal, it is clear that the body stands alone from all other judicial mechanisms merely owing to the fact that Tribunal does not in fact have any discernible rules. This is a tribunal that is not bound by any rules and as a result is not considered in the same breath as various other ad hoc bodies that sought to deliver justice following periods of conflict.
It has been condemned by a host of highly credible international human rights organisations, jurists, parliamentarians and UN human rights experts. It is, and the case of Azhurul Islam bears painful testimony to the fact, a very clear example of what to not to do in a quest for justice.
As a result of all of the above, we find ourselves confronted by convictions that are based on guilt by association and little more. Salacious gossip and hearsay evidence is adduced without a shred of evidence to corroborate the nature of the accusation and it is on this basis that men such as Azharul Islam are sentenced to die.
Following the revelations published in 2012 detailing the lack of impartiality and the blatant ignorance and refusal to abide by international legal standards throughout the first trials, there has been no reform. The Government sought to prevent the “leaks” from being published and targeted whistle-blowers. A witch-hunt against newspapers and human rights bodies that sought to expose the failings of the tribunal began; most notably of all leading to Human Rights Watch being accused of making “biased, baseless, utterly false, fabricated and ill-motivated allegations.” This is a legal entity that seeks to shut down those that expose its failings rather than abide by international legal standards to deliver truth and justice by means of due process. The rule of law is extinct.
Bangladesh is once again re-entering a dark phase in its short history. Despite the plethora of situations around the world, despite the human rights crisis we now see, the international community must wake up to the very real danger in looking away.
It is right that those responsible be held accountable through a fair and transparent process. However, we should not permit the lowering of the evidentiary standard in holding those accountable. The scale and gravity of the crimes does not permit the lowering of the standard – on the contrary – it requires a high standard to be applied. The process can only be described as a flagrant denial of justice and political show trials will not bring justice to Bangladesh.
A democracy is not measured by how it treats its most treasured subjects, but how it treats those accused of the most serious crimes and its commitment to the rule of law.