Monday, November 17, 2014

Nationalising international justice

Below is the text of a short article recently published in the International Justice Tribune. For those who do not know it, the IJT is an excellent bi-monthly magazine on international justice issues throughout the world. 

You can download the article from the magazine as a PDF, here. (The title given by the magazine by the way is not mine!)

Recent verdict stir up controversy over Bangladesh war crimes tribunal

David Bergman

A spate of rulings against leaders of Bangladesh biggest Islamist opposition party for atrocities during the war in 1971, shows the International Crimes Tribunals (ICT) forging ahead – despite continuing criticism from outside the country.

On Monday, Bangladesh’s Supreme court upheld the death penalty for Mohammed Kamaruzzman, one of the current leaders of Jamaat-e-Islami, convicted by the International Crimes Tribunal in May last year for genocide and torture. This decision comes hot on the heals of two other death sentences, handed out by the ICT last week.
On Sunday, another key figure of the party, media tycoon, Mir Quassem Ali was sentenced to be handed by the Tribunal just days after the head of the Jamaat Motiur Rahman Nizami, 71, received a similar sentence. The court found that Nizami had led the Al Badr death squad, which supported the Pakistan military in its fight to stop Bangladesh secession. Nizami’s sentence was for four particular offences, including one involving the mass killing of around 450 civilians and the rape of 30 women in Pabna. Estimates of conflict casualties, most at the hands of Pakistan military and collaborators, range from 300,000 to 3 million. Ali and Nizami’s conviction makes for eight men so far sentenced to death by the Dhaka-based ICTs, established in 2009. Another two men have been given life sentences.

Last December, Abdul Quader Molla, an assistant secretary-general of the same party, was the first convict to be executed after the appellate court overturned his original life sentence and handed down the death penalty. In September, a death sentence for Delwar Hossain Sayedee, another leader in the party, was commuted by the same court to one of life imprisonment.

When the court began, it reflected a widespread view in Bangladesh that those alleged to have committed atrocities during the war should be brought to book. The government saw itself as implementing, in the former foreign minister’s words, “Bangladesh's international obligations to deal with international crimes and ensure justice to millions of victims of crimes committed in 1971”. However, the Bangladesh justice approach has differed significantly from other world attempts at delivering justice for mass atrocities. Judges, lawyers, procedures and, in most instances the law applied, have all been Bangladeshi.

“The International Crimes Tribunals in Bangladesh is not 'international' in nature, but for all meaning and purposes they are 'domestic',” former foreign minister Dipu Moni told diplomats in January 2013 referring to the two tribunals that comprise the ICT. The only international element is the nature of the offences, she added. Holding the trials in Bangladesh has had advantages. The trials were organized quickly and efficiently. Local journalists can report on day to day proceedings, offering a sense of national ownership of the process.

But rights organisations have argued that the trials do not meet international standards. Earlier this year, the International Centre for Transitional Justice concluded that that ‘there were well-founded fears about fundamental unfairness in the pre-trial and trial stages’ and called for a suspension of the current proceedings.

“Deeply flawed” was how HRW described the trial of Golam Azam, Jamaat’s leader in 1971, sentenced by the ICT to 90 years in jail for offences involving conspiracy, planning, incitement, complicity, murder and torture,.

One of the concerns often cited is that in almost all cases, the tribunal has drastically capped numbers of defence witnesses. In a case resulting in a death sentence in October 2013, the ICT permitted the prosecution to bring 41 witnesses to prove 23 offences, but the defence was restricted to five.

In Nizami’s trial, the tribunal only allowed four witnesses to defend 16 offences, while the prosecution was permitted 26. Explaining that ruling the ICT stated that no more witnesses were required as “it is a settled principle of law, in a criminal case, [that] the defence is not under obligation to prove his innocence”.

Lawyers’ work has also been made harder with an appellate court judgement in the case of Abdul Quader Molla. It holds that in assessing the credibility of a prosecution witness, the tribunal cannot,consider any contradictions between oral testimony given by the witness in court, and his or her statements beforehand. This meant that, the court would not take into acount that the woman who testified that the Jamaat leader was involved in her family’s murder- the offence for which he received the death penalty - made no such allegation in any pre-trial statement, including to the tribunal’s investigation officer. She was the sole witness for this offence.

An incident in the Sayedee trial also caused concern. When a key defence witness was snatched outside the ICT gates, apparently by law enforcement authorities, the court sought no independent inquiry, instead relying on the chief prosecutor’s word that such an incident did not occur. The wisntess, Sukhranjan Bali was later found to be in a jail in Calcutta. He said he was picked upby Bangladeshi detective branch officials who forcibly took him to the Indian border, where he was arrested.

Despite procedural concerns, many Bangladeshis feel the ICT trials have achieved a kind of justice. Mahfuz Anam, the editor of a leading English language daily, wrote after Nizami’s verdict: ‘It is not revenge. It is not retribution. It is not settling of accounts. And politics it is definitely not. It is meting out justice.’ As Anam argued, the alternative to national trials would almost certainly be no trials and with that years of continued impunity, allowing the accused to once again hold senior political positions.

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