On victory day - a dilemma about the trials

On 16 December, Bangladesh's 41st Victory Day, celebrating the Pakistan military surrender at the Ramna Race course, here is a difficult dilemma facing fair minded people in Bangladesh who support the International Crimes Tribunal. It is as follows:

When you support the principle of accountability for the crimes against humanity committed during Bangladesh's 1971 war of Independence. 

When you or your friends or neighbors have lost friends or relatives in 1971 at the hands of the Pakistan military or those who aided and abetted it. 

When you see that these same people whom you believe were involved in 1971 war crimes have subsequently been rehabilitated as elected political leaders and government ministers. 

When you have witnessed them refusing to acknowledge the crimes of 1971 and indeed on occasion persecuting those who demand accountability. 

When you are opposed to the Islamic politics that these people and their party propagate.

When you have seen statements by them refusing to recognize the dignity and equality of fellow citizens of Bangladesh.

When finally after many years of campaigning several of the front ranking individuals have finally been arrested and are facing trial.

When you know that the criminal justice system in Bangladesh is highly defective, allowing corruption and manipulation to allow powerful men, of all political shades, to escape justice and to enjoy impunity.

When this appears to be the one and only possibility for trials to take place ...... 

In this context, how should one respond when the trials of these people - in tribunals which are grossly under-resourced and staffed - appear to raise serious due process concerns? 

Should one just turn a blind eye to these apparent defects in the trial as the greater good is achieved by allowing a flawed process to continue? Should the 'greater good' of holding these individuals accountable trump the principle of fair trials?  

Or, should you acknowledge the limitations of the ongoing process and do your best to demand that necessary changes are made, even though this may ultimately provide an opportunity for the defense to end the trials, or prolong them, and escape accountability?

This is a real dilemma facing many people in Bangladesh and abroad (other than those who are diehard supporters of the accused or are political enemies of the current Awami League government) in relation to the International Crimes Tribunal being held here in Dhaka. 

It is a particularly crucial question as many of those facing this dilemma are journalists, editors and opinion formers. What they say and think counts in Bangladesh, and sets the tones for others. 

And at present, they are for the most part, turning a blind eye.

Below are a number of reasons why this position is not the best approach

1. Fair trials are the best way to determine guilt. There is of course no denying that the the Jamaat-e- Islami as a party, and its individual members, supported the Pakistan military - but the question is whether particular accused individuals have committed crimes. That requires a focus on their individual conduct and whether that conduct falls within the definition of offenses set out in the 1973 Act, as understood by reference to international case law. 

People's assumptions of guilt relating to 1971 are in most cases dependent on second hand narratives told by those they know or published in newspaper articles and books. To establish whether a particular individual has committed a specific crime however a court must assess both prosecution and defense evidence fairly, and determine whether guilt is proved on the basis of evidence proved 'beyond reasonable doubt.' And for that to happen the trial needs to be fair.

It is true that the tribunal is by no means a 'kangaroo court', which those supporting the defense have on occasion claimed. It is a court which does afford some basic protections of a due process trial - defense lawyers, defense witnesses, cross examination of witnesses, etc. It is also a tribunal which has ensured that the accused are given far more welfare rights in prison than any other accused has been given by any other national court in Bangladesh; arguably the tribunal has bent over backwards to provide  prison conditions that are as good as one can hope to achieve in Bangladesh.

But at the same time, it is also the case that real concerns about the trial of Sayedee have been raised bolstered further by concerns raised by the information disclosed in the Economist magazine. 

It is certainly true that many of the problems which have been highlighted about this tribunal, are  evident in many other criminal trials in Bangladesh. And one can see why it may appear to be unfair that this one trial is subject to such attention when all other trials, with similar problems, are ignored

However, this is also probably the biggest trial in Bangladesh's history, it involves leaders from two opposition parties (even if being a leader of the opposition party is not the actual reason they are on trial) and it should be no surprise to anyone that the world is watching. The concerns about due process in these trials cannot therefore just be brushed aside.

2. Consistency in fair trial advocacy: Many of those who now remain silent over due process issues relating to war crimes trials, have been the same people who to their credit been campaigning for the independence of the judiciary, for constitutional rights, for fair trials and for the de-politicisation of the police and justice system. However, if one supports these principles, one cannot pick and choose on which occasion they should be applied; they need to be applied not only when one is sympathetic to the accused (i.e the case of Limon) but also when one is unsympathetic to those in the dock.

It may certainly stick in ones's throat that the Jamaat and BNP leaders under trial have never shown any prior interest in fair trials when they were in a position of political power. But if one supports the principle of fair trials, one cannot just simple apply them to the saints, and not to the 'sinners'. It would be wrong to only apply principles of fair trial only to those cases when one is sympathetic to the person in the dock.

Failing to apply these principles across the board is very corrosive to the criminal justice system in this country and precludes the possibility of reform which would be beneficial to every citizen. This is because fair trial advocates tend only to support fair trials when it is 'their' accused who is being prosecuted - and are quite happy to see unfair trials of those who are their political opponents.

3. Credibility nationally and internationally: The trials were established with generally widespread support in Bangladesh, with some apparently tacit support from the leadership of the main opposition party, the Bangladesh Nationalist Party. There is now a situation where the BNP as a party appears completely opposed to the tribunals. There are many reasons for this - some of them simply political, of course - but the manner in which BNP has moved from giving tacit support to its current outright opposition, has certainly been facilitated by due process concerns that have come to light at different points in the process. It is now fair to say that the country is increasingly divided on these trials - and the overall credibility of the tribunals is in question. Yet, in a crisis, there is opportunity. And whilst many things should have been done earlier, it is still possible that reforms can take place to regain this credibility. 

These trials are being played out on an international stage. Those who campaigned saw these trials as a great opportunity not only to show case Bangladesh justice, but also to tell the world about 1971. The trials were also bound to get a great deal of international attention. Apart from dealing explicitly with international criminal offenses, at an early stage the accused hired a number of international criminal lawyers to assist it. 

Now, internationally, these trials have even less credibility than they do nationally. Those human rights organizations with an interest in the tribunal have all raised critical questions. The views of these organizations can change, but this does require reform. 

But no change will happen unless those who want credible trials are open in making that demand. And if they don't the trials will find it very hard to regain their widespread credibility both nationally and internationally.

(see also: Will the tribunal continue to have the support of Bangladesh's civil society establishment