International War Crimes Tribunal: A performance review

Photo: Star

It was January 29, 2009, in the maiden sitting of the 9th Parliament, albeit in the absence of the main opposition BNP, a resolution was passed calling on the government to ensure immediate trial of the war criminals. Planning Minister A.K. Khandaker, who was the deputy chief of staff of the Liberation Forces, and currently the president of the Sector Commanders Forum, which has been spearheading the nation-wide campaign to try the war criminals, thanked parliament for adopting the resolution. In his words: "People will sleep in peace tonight. For many, it's the beginning of the end of the torment they have been enduring for 38 long years." The prime minister, echoing the sentiment of the house declared: "Trial of the war criminals is now a demand of the nation”.
From the very inception, the main opposition BNP was trying to confuse the people by making a differentiation between crime against humanity and war crimes. As set out in the Statute of International Criminal Court (ICC) signed in Rome in 2002: "Crimes against humanity include crimes such as the extermination of civilians, enslavement, torture, rape, forced pregnancy, persecution on political, racial, national, ethnic, cultural, religious or gender grounds, and enforced disappearances -- but only when they are part of a widespread or systematic attack directed against a civilian population." Crimes against humanity are only distinguishable from war crimes in that they not only apply in the context of war -- they apply in times of war and peace. In the context of the trial in question, this refers to crimes committed during the 1971 Liberation War.
To maintain international standard and to meet the requirements of the Rome Statute, the Bangladesh cabinet, upon recommendation of the law commission, approved the International Crimes Tribunal (Amendment) 2009 on July 6, 2009, aiming to try those involved in acts against humanity during the 1971 Liberation War. It was further amended on February 17, 2013 in the wake of the verdict against Quader Mollah. The amendments provided that a political party that had worked against the liberation of Bangladesh could be tried on the same charges as individuals. It also empowered the government, informants and complainants to appeal against any verdict of the war crimes tribunals with the Appellate Division, the right until then was given only to the defendants.
The tribunals adopted numerous practices that uphold all possible rights of the accused. The accused are given adequate time and facilities to prepare their cases. Prosecutors must furnish them a list of witnesses along with the copies of recorded statements and documents upon which they intend to rely. Defendants also have an unfettered right to call witnesses and to cross examine prosecution witnesses. All of this is in keeping with the International Covenant on Civil and Political Rights, which is the global standard for civil and political rights.
A press release from ICC in Hague on March 24, 2010 said, "Bangladesh has become the first South Asian country to ratify the pact that established the International Criminal Court (ICC) and gave it a mandate for trying people accused of genocide, crimes against humanity and war crimes”. ICC President, Judge Sang-Hyun Song, noted that “By ratifying the Rome Statute, Bangladesh will become the first State Party in South Asia. I applaud its decision to join the growing commitment of states to end impunity for war crimes, crimes against humanity and genocide. Bangladesh's upcoming 1971 war crimes trials will be held under its recently amended International Crimes (Tribunals) Act 1973”.
The International Bar Association stated that, "1973 Legislation, together with the 2009 amending text, provides a system which is broadly compatible with current international standards”. Human Rights Watch (HRW), which initially supported the establishment of the tribunal, has criticised it on issues of fairness and transparency, as well as reported harassment of lawyers and witnesses representing the accused. Since then HRW has been a bitter critic of the ICT and trial process, citing, in most cases, unfounded and unsubstantiated reasons. Quite contrary to the HRW's apprehensions of “harassment of lawyers and witnesses representing the accused”, it was the prosecution witnesses who fell victim to the vengeance of supporters of the accused and convicts.   
With the overwhelming mandate to try the war criminals, the government of the day started the trials in March 2010. The judges who are presiding over the trials in two tribunals were either serving justices of High Court or were given the appointment equivalent to the judges of the highest court of the land. At this time, trials of ten perpetrators, three of them in ICT-1 and seven in ICT-2 have been completed, while a few others are in the dock. None of them are strangers to us, rather, are nationally known as direct abettors of the gruesome crimes ever committed against us as a people. Trials were conducted in presence of their duly appointed lawyers and the media, both local and international. So far only one convict has been executed after the appellate division of the Supreme Court turned down his review petition and his intention not to ask for the mercy of the President of the Republic.
Many of the critics of the ICT and its proceedings tried to create a smokescreen by portraying the executed convict as a victim of mistaken identity, who, in their words, had no part in the crimes committed against our people. However, this has been cleared by a resolution of the Pakistani parliament where it was reiterated, “Mollah had been hanged for supporting Pakistan in 1971 till the very end before the creation of Bangladesh”.
LUBP, a leading political website of Pakistan had the following to say in its editorial vis-à-vis the resolution in the Pakistani parliament: “On 13 December 2013, Abdul Quader Molla, a top leader of Jamaat-e-Islami was hanged for raping Bengali women and mass killing Bengali men and children. The unspeakable horror Abdul Quader Molla wreaked on his innocent victims was that they wanted to live as free human beings in their own homeland. But Abdul Quader Molla wanted them to continue to be slaves of the corrupt generals of then West Pakistan. Led by Pakistan's pro-Taliban Interior Minister Choudhury Nisar Khan, the Takfiri-Deobandis not only condemned the hanging, but also justified the rape of thousands of Bengali women and mass killing of Bengali men, women and children”.
From the inception of the trials, the odds have been high. It was a daunting task for the prosecutors to collect evidences and witnesses for the horrendous crimes that were committed some 42 years ago. During the greater part of that period the parties and people those who were in state power were neither in favour of the trials nor contemplated that the trials would ever take place. In many cases, the documentary evidences pertaining to the crimes were systematically destroyed. Also many of the direct witnesses of the crimes that happened 42 years ago have passed away. In the face of the killings of several witnesses by the supporters of the convicts, it was risky for the witnesses to come forward to testify. The risk was more frightening for the fact that the main opposition party is not only opposed to the trial but has issued threat such as, “if voted to power BNP would try those involved in the war crimes trials”.
Except for Bangladesh, nowhere in history the defeated force that was responsible for committing genocide is allowed to function as a legal political party. Prior to Nuremberg trials, the Nazi Party of the Third Reich was banned once and for all. Likewise in recent times (1996-2012), during the trials for genocide of ethnic Tutsis by the ethnic Hutus in Rwanda, Akazu, the party of the Hutu extremists, became a non-existent entity after they were defeated by Rwandan Patriotic Front that took control of the country.
Main criticisms of the ICT are emanating from a London-based weekly, The Economist, which seems to a have fallen prey to the huge financial coffer of the Jamaat-e-Islami.  There are various reports elucidating various estimates as to how much Jamaati coffers have spilled to the western side of the Atlantic. A recent editorial in the NY Times made exactly identical assertions as being done in the Economist almost every other week.
An uncalled for observation by the Chairman of a US House Committee, casting aspersion on the integrity of the trial process, reflected his ignorance of the plight of our people in 1971. By the same token, recent telephone calls by US Secretary of State John Kerry and UN Secretary General to Bangladesh PM, reportedly asking to halt Quader Mollah's execution, reflected a flagrant disregard for the absolutely transparent judicial process of a sovereign state, unlike what has been happening in the so-called trials in Guantanamo.
It was surprising that this kind of request came from a distinguished former US Senator, that too from the State of the Kennedys, the political idols of many our freedom fighters, who must be aware that it was Pakistan's pro-Taliban Interior Minister Choudhury Nisar Khan who piloted the resolution of condemnation in Pakistan parliament and it was the Pakistani Taliban who issued threat to blast the Bangladesh Embassy in Islamabad following the execution of the first convict in the much-awaited trial, which the people of Bangladesh do not consider as reprisal or retribution, but a simple but long-overdue justice.

The writer is the Convener, Canadian Committee for Human Rights and Democracy in Bangladesh.