Over the last 20 years, international criminal justice has developed rapidly, and most people see this as a change for the better. Thanks to the labors, however imperfect, of the International Criminal Court in The Hague, and of ad-hoc tribunals from Sierra Leone to Cambodia, it has been established that politicians and warlords who commit terrible crimes against the vulnerable can no longer count on impunity.
But a trial now starting in Bangladesh risks making a mockery of that principle. Indeed, it serves as a terrible warning of the way in which the ideals of universal justice and accountability can be abused. Facing ill-defined charges of crimes against humanity, which carry the death penalty, are five elderly men who lead the country’s Islamist party, Jamaat-e-Islami. (A sixth defendant is a central figure in the Bangladesh National Party, an erstwhile political ally of Jamaat.)
The charges arise from the civil war of 1971 in which the former East Pakistan gained independence as Bangladesh: a savage nine-month conflict in which hundreds of thousands of people died. It is widely accepted that military forces under the command of West Pakistan committed brutal acts of ethnic cleansing, directed at Hindus in particular. But that does not, of course, prove the guilt of a political party, like Jamaat, which opposed independence. To make a considered moral judgement on a conflict that took place 40 years ago, a scrupulously impartial investigation would be needed.
Sadly, the current trial promises to be nothing of the kind. It pretends to be applying universal principles — that is implicit in the name of the court, the Bangladesh International Crimes Tribunal — but in contrast with other recent ad-hoc tribunals, there is no external input, because none has been allowed.
I was one of three British lawyers whose help was sought by the local defense team. I was retained on behalf of Delwar Hossain Sayedee, Jamaat’s leading cleric, who goes on trial for his life on Sunday. Although I managed to pay one visit to Dhaka last March, where I was tailed by security operatives, neither I nor any other British lawyer has been allowed to participate in the trial or enter Bangladesh while it is happening.
But from any vantage point, certain dire features of the proceedings are clear. The trial is being held under a revived version of the country’s International Crimes (Tribunals) Act of 1973, which was initially presented as South Asia’s answer to the Nuremberg trials — only to be set aside in favor of a general amnesty for all participants in the conflict. In its original form, the 1973 act falls far short of international standards. Government investigators have wide-ranging rights to detain and question, suspects lack the usual rights to information and legal advice. The 1973 act has recently been amended in ways that make matters worse.
Sayedee’s treatment speaks for itself. When he was first questioned, his attending lawyer was forced to “observe” from a room where he could neither see nor hear anything. The questioners regularly broke off their work to inform journalists of the suspect’s supposed “confessions” which were duly sensationalized in the press. When Sayedee was eventually charged, he was again denied access to a lawyer and forced to enter immediate pleas to a series of grave accusations with little precision over place or time. The 1973 act then allows just three weeks, an absurdly short time, for the defense to prepare its case.
In recent days there have been disturbing reports of defense lawyers and witnesses being harassed. As Human Rights Watch has disclosed, one of Sayedee’s main lawyers received a warning to stay away from work, and was told that he might be arrested. Another prominent lawyer and Jamaat supporter faces an arrest warrant in connection with riots in Dhaka in September, even though he was in Europe at the time. Further ominous developments, cited by Human Rights Watch, include the arrest of one key defense witness and the preparation of criminal charges against nine more.
The rules on what sort of evidence is permissible, as laid down by the 1973 act, are at variance with international norms, and with Bangladeshi jurisprudence. Media reports, however biased, are explicitly admitted, with no forensic scrutiny. In the latest alarming development, the court has rejected a petition of recusal against its own chairman, who in 1993 was involved in a contentious enquiry into Jamaat’s alleged liability for atrocities.
The Bangladesh government has made some extravagant claims on behalf of the trial. Kamrul Islam, the state minister for law, said in October that the tribunal would be “exemplary for the world community ... working with full independence and complete neutrality.” A fair trial would indeed have been a landmark: the court could have set an example to the developing world, showing how to end impunity while also cementing reconciliation.
But the court prosecutor, Rana Dasgupta, seems not to anticipate any real deliberation by the court. “One can say that 2012 is the year of the verdict of the war crimes trial and 2013 the year of verdict execution,” he has ominously predicted. If he is proved right, the result will smack not of reconciliation but revenge.
First published in The New York Times, November 17, 2011
John Cammegh is a barrister in chambers at 9 Bedford Row, London. He acted as lead defense counsel for Augustine Gbao, overall security commander of the RUF rebel army, at his war crimes trial at the Special Court of Sierra Leone from 2004 to 2006