International criminal law is an ever-evolving subject and it is fair to say that the international criminal tribunals are imperfect. Any student of international law will be able to pick faults with the application of law in the international and ad hoc tribunals from Nuremberg to the International Criminal Court in The Hague. Same is the case with the International Crimes Tribunal of Bangladesh. It could have contributed greatly to the development of international law and could have contributed to reconciliation in Bangladesh – a country that remains deeply divided more than four decades after the end of hostilities. Instead, its contribution it ranks at the very bottom of the scale.
On May 10, Motiur Rahman Nizami, the head of Bangladesh’s largest Islamist party — Jamaat-e-Islami — was “hanged by the neck till he is dead” as ordered by the International Crimes Tribunal. The Supreme Court of Bangladesh had upheld his death sentence on May 05 and he did not file for clemency. Nizami, a Dhaka University graduate, has twice been elected to the Bangladeshi parliament, serving as a minister in the government led by the Bangladesh Nationalist Party (BNP) between 2001 and 2006. Upholding his death sentence has resurrected the chronic criticism on the controversial tribunal. There are widespread allegations that the Bangladeshi government has taken a plan to kill Maulana Nizami in the name of trial of crimes against humanity as part of its political vengeance.
Arrested in June 2010, Motiur Rehman was the first suspect to be indicted by the tribunal in 2011. In February 2013, he was found guilty of charges including murder, torture and rape. State prosecutors accused him of working with the al-Badr group during the ‘independence’ struggle and of carrying out numerous atrocities, including forcibly converting Hindus to Islam. He had denied all the allegations and after he was convicted, there were widespread protests across Dhaka.
The Bangladesh International Crimes Tribunal was established in 2010 and whilst it was lauded by the international community as a valiant effort at accountability, it has been widely criticized since then for failing to adhere to any real standards of due process. It is important to note that the criticisms, of which there are many, are not merely procedural irregularities; there are serious allegations of failing to meet even basic human rights standards. There are credible allegations of prosecutorial and judicial misconduct, political interference, subordinating perjury and witness abduction. These are not insignificant concerns.
For instance, an International NGO namely No Peace Without Justice (NPWJ) and the Nonviolent Radical Party Transnational and Transparty (NRPTT) issued a statement whereby it said: “In its present form, it [the Tribunal] does nothing more than offer political retribution, given that the original trial and the decision by the appellate division of the Supreme Court do not address the very legitimate concerns raised both domestically and internationally.
Moreover, in November 2015, the United Nations High Commissioner for Human Rights chided the Tribunal by saying, “Since its inception in 2010, the Tribunal has delivered 17 verdicts, of which 15 have resulted in the imposition of the death penalty against members of the Jamaat-e-Islami and Bangladesh National Party. All those who were convicted were accused of committing crimes against humanity, genocide and other international crimes in 1971. We have long warned that, given the doubts that have been raised about the fairness of trials conducted before the Tribunal, the Government of Bangladesh should not implement death penalty sentences.”
The Government of Bangladesh has also been blamed for the lack of international engagement, preferring for a national institution that it can control rather than ceding to a process under international supervision.
It is also not lost on anyone that the incumbent Prime Minister of Bangladesh, Sheikh Hasina Wajid, has an unhidden and oft-seen prejudice against the Islamist party; as the leaders of this party were in favour of a united Pakistan rather than a Bangladesh which was the principal demand of the Sheikh Mujibur Rehman, the father of Sheikh Hasina. And, this prejudice has prevailed in the decisions of the Tribunal as despite a 1974 agreement with Pakistan that the people who opposed the creation of Bangladesh will not be tried in the courts of law, people have been tried and hanged.
In her animosity toward Pakistan she even forgot her father’s promise contained in the 1974 tripartite agreement under which Dhaka had agreed not to proceed against those whom it had accused of ‘war crimes’ during the 1971 separation.
Since the establishment of the tribunal injustice has prevailed and many political opponents of the Awami League have been mercilessly hanged. The Bangladeshi premier is behind this murder of justice as her anti-Pakistan demeanor is not lost on any one. Those who created Mukti Bahini to slaughter the innocent Bengalis are close to her heart but she has a deep aversion for those who wanted to keep the country, which was created in the name of Islam, united. Now the situation is that the hopes for justice have transformed into outrage for the grave and persistent violations of due process being committed by the Tribunal as well as the government.
An insightful study of “The International Crimes (Tribunals) Act, 1973” reveals that the crimes in the Statute were ill defined because, in sheer violation of the due process doctrine, the accused were completely deprived of their most basic human rights i.e. right to fair trial, etc., guaranteed by the Bangladeshi Constitution as well as all international treaties. Moreover, undue political interference and governmental manipulation of the judicial activity has also put a big question mark against the credibility of the Tribunal.
How ironic is the fact that the Bangladeshi government continues to take pride in creating the Tribunal against whom the noted jurists around the world are condemning and lamenting. Unfortunately, the Tribunal which has raised many eyebrows in the international arena, is the ‘most transparent’ to those in power in Bangladesh. History will define this Tribunal as the most oppressive and its decisions as the murder of justice for which Sheikh Hasina Wajid will be held equally responsible along with the judges of the Tribunal.
Almost all of the judgements given and sentences awarded by the Tribunal have also been rubber-stamped by the Appellate Division of the Bangladeshi Supreme Court. The fact still remains that all of these judgements have been riddled with numerous mistakes and errors. Due to abounding legal inaccuracies and an inquisitorial narrative, the decisions of the Tribunal fall woefully short of international standards of justice, and stay far from the level of legal expertise, impartiality and fairness expected from a modern judicial process.
Pakistan has held a strong stance that instead of judicially killing the Awami League opponents, a process of reconciliation in Bangladesh must be started in accordance with the spirit of Pakistan, India, Bangladesh Agreement of April 9, 1974.
Sheikh Hasina has to acknowledge that the original 1973 legislation for the establishment of war crimes had been set aside by her own father, Sheikh Mujibur Rehman, after the abovementioned tripartite agreement of April 1974 for the repatriation of war prisoners. Rehman had then agreed that in the interest of regional peace, no one would be put on trial for alleged crimes committed during the 1971 war.
The accord had specifically mentioned a statement by Bangladeshi Premier Mujibur Rehman that “he wanted the people to forget the past and to make a fresh start, stating that the people of Bangladesh knew how to forgive.”
This is not the time to indulge in unwarranted and uncalled for hostilities. Conduct of Bangladeshi government is creating a strong resentment among the country’s populace and, in turn, incidents of extremism and religion-induced violence are on the rise. Today, the most pressing as well as perplexing problems of South Asia is terrorism. Sheikh Hasina and the judiciary of Bangladesh must realize that injustice begets terrorism. So, there is a dire need to reconcile with other Bangladeshi parties as well as neighbouring countries. Otherwise the spectre of hatred and antagonism will continue to haunt South Asia for the decades, or perhaps, centuries to come.