Friday, November 27, 2015

Bangladesh government hits back at UN criticism

The Bangladesh government has responded to a statement by the United Nations High Commissioner for Human Rights. Below are both the statements of the UN, and that of the Bangladesh government.

The Bangladesh government in its statement focuses on the adequacy of the International Crimes (Tribunal) Act 1973, as amended in 2009 (rather than the practice of the trials) and refers to an International Bar Association review of the 1973 Act. In 2010, the Daily Star, wrote an article about this. and you can download the whole report here, which is rather more critical of the law than the government statement suggests, though it does indeed contain the sentence quoted by the government: "The 1973 Legislation together with the 2009 amending text, provides a system which is broadly compatible with current international standard”

(You can read more about these issues here and here.)

Here is the UN statement:
The execution in Bangladesh on Sunday of Salauddin Quader Chowdhury and Ali Ahsan Mohammad Mujahid brings to four the number of people hanged following convictions by the Bangladesh International Crimes Tribunal. Mujahid, leader of Jamat-e-Islami and Chowdhury, of the Bangladesh National Party, were sentenced to death by the Bangladesh International Crimes Tribunal on charges of war crimes and genocide. The Supreme Court rejected their appeals on 18 November 2015. 
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. Similar concerns were expressed by UN human rights experts who, on several occasions, called on the Government to halt the executions, as the trials did not meet international standards of fair trial and due process as stipulated in the International Covenant on Civil and Political Rights, to which Bangladesh is a party.
The UN opposes the use of the death penalty in all circumstances, even for the most serious international crimes. We renew our call on the Government of Bangladesh to immediately institute a moratorium on the death penalty and abolish this inhuman practice altogether.
Here is the Bangladesh government statement:
People’s Republic of Bangladesh
Ministry of Foreign Affairs
Press Release
Dhaka 26 November 2015 
Bangladesh refutes claims of unfairness against ICT-BD verdicts 
Bangladesh has refuted the claims of UN Office of the High Commissioner for Human Rights that there are doubts encircling the ICT-BD trials. The Office also called for abolishing death penalty. 
In its response to the Press Breifing notes of the Office, Bangladesh expressed that it is highly disturbed by the conclusion made in the Press Briefing Note with regard to the misperception/misconception of OHCHR about the reality entailing the verdicts of the International Crimes Tribunal, Bangladesh, (ICT-BD), currently focusing on the two cases of Messers Salauddin Quader Chowdhury and Ali Ahsan Muhammad Mujahid.
Bangladesh mentioned that Messers Salauddin Quader Chowdhury and Ali Ahsan Muhammad Mujahid have been convicted of committing crimes against humanity and genocide during Bangladesh War of Liberation in 1971. Both the convicted individuals have been handed down the death sentence by the ICT-BD for charges proven against them beyond reasonable doubts. The verdicts were subsequently upheld by the Appellate Division of Bangladesh Supreme after a full bench hearing. On the judgment of the Supreme Court, the Review Petitions submitted by the convicted persons have also been heard by the Appellate Division of the Supreme Court on 18 November 2015, and subsequently disposed of.

Bangladesh explained that the ICT-BD trials takes solely into consideration the crimes committed by the individuals accused and convicted for crimes against humanity they had committed in 1971, and has no preoccupation with their present political status. Mr. Chowdhury or Mr. Mujahid’s cases have nothing to do with their political identity or affiliation, and the point that they belong to some opposition political parties is only a coincidence as far as the trials are concerned. Moreover, certain accused and convicted individuals in the ICT-BD trials are with ruling party and its electoral allies. In this regard, Bangladesh has given a full account of the trials and proceedings related to the two cases of Messers Salauddin Quader Chowdhury and Ali Ahsan Muhammad Mujahid.

Bangladesh also reiterated that as a state party to the ICCPR, along with its Optional Protocol, Bangladesh is obliged to maintain international standards in its judicial process. The provisions of the International Crimes (Tribunals) Act, 1973 (ICT Act 1973) and the rules made thereunder are not inconsistent with the rights of the accused enshrined under article 14 of the ICCPR. The Government recognizes its responsibility towards its citizens and is committed to fulfill its obligations to the citizens of Bangladesh. 
Bangladesh’s response to the Office of the High Commissioner for Human Rights emphasized that the International Crimes (Tribunals) Act, 1973 (ICT Act 1973) of Bangladesh was enacted by the Bangladesh Parliament which is vested with the legislative powers of the Republic under the Constitution. The ICT Act provides for the detention, prosecution and punishment of persons for genocide, crimes against humanity and other crimes under international law and for matters connected therewith. Thus, the ICT Act provides for the detention, prosecution and punishment of persons liable for such crimes committed during the War of Liberation of Bangladesh from 25 March to 16 December 1971. The violations involved the indiscriminate killing of civilians, including women and children; the attempt to exterminate or drive out of the country a large part of population of approximately 10 million people; the dislocation of, at any one stage or another, of nearly half of the country’s population of 75 million people; the arrest, torture and killing without trial of suspects; the raping of women; the destruction of villages and towns; and the looting of property. In addition to criminal offences under domestic law, there is a strong prima facie case that criminal offences were committed in international law, namely war crimes and crimes against humanity and acts of genocide under the Genocide Convention 1948. Article VI of the Convention on the Prevention and Punishment of the Crime of Genocide (1948 Genocide Convention) provides that persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed.The Convention also provides that (Article 6.2) in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. This clearly is the case, which has been maintained by the Supreme Court in Bangladesh with regard two verdicts under discussion. Article V of the Convention also provides that The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III of the Convention. 
It has been categorically found that the rights of defense and procedure given in the ICT Act and the Rules of Procedure are manifestations of “due process of law” and “fair trial” which make the legislation of 1973 more humane, jurisprudentially sound and legally valid. The International Bar Association (IBA) Committee, in a report has also opined that “The 1973 Legislation together with the 2009 amending text, provides a system which is broadly compatible with current international standard”. This opinion should alone suffice, as far as the minimum standard required by international law is concerned. Besides, the ICC Statute never denies the primacy of the national law. Article 10 of the Statute explicitly recognizes that “nothing in this part shall be interpreted as limiting or prejudicing in any way existing or developing rules of interpreted as limiting or prejudicing in any way existing or developing rules of international law for the purpose other than this Statute”. 
In conclusion, Bangladesh mentioned that The ICT-BD trials have created an opportunity for ending the culture of impunity, ensuring justice to the victims, and paving the way for truth and reconciliation. This was duly recognised by the European Parliament in its Resolution of 16 January 2014 where it posited, “... the International Crimes Tribunal has played an important role in providing redress and closure for victims of and those affected by the Bangladeshi war of independence.” Similarly, the European Parliament earlier also acknowledged the need for reconciliation, justice and accountability for the crimes committed during the 1971 war of independence while stressing the important role of ICT in this matter.

It is unfortunate that while the international community across the board has embraced the trials as an effort to end the culture of impunity for mass atrocity crimes committed over four decades ago, some selected quarters are still resorting to sweeping, biased and unfounded comments about the trials as fed to them by the agents and sympathisers of those accused and convicted. The Government and the people of Bangladesh are confident that plausible legal arguments can be provided for all the fabricated charges being leveled against the trials, and that the fact that fair trial and due process standards had been upheld through out the trial process, would ultimately prevail.

In view of the above, to any discerning observer, the position taken by the OHCHR in the said press briefing note raises a question – whether the OHCHR is siding with the perpetrators of war crime, genocide and crimes against humanity. It is also a question if the OHCHR is choosing to undermine the cry for justice of the families of innumerable victims; whether the impunity that the majority of the people of Bangladesh want to see gone, is being upheld by the OHCHR. The present government of Bangladesh came to power with an overwhelming majority who supported their declared manifesto of bringing an end to the impunity so long enjoyed by the perpetrators of war crime, genocide and crimes against humanity and no democratic government could ignore such a demand in Bangladesh.

The current journalistic environment in Bangladesh does not at present permit a proper commentary and analysis of this statement.

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