by TOBY CADMAN AND LENNART POULSEN
International criminal law is an ever-evolving subject and it is fair to say that the international criminal tribunals are imperfect. Any student of international law will be able to pick faults with the application of law in the international and ad hoc tribunals from Nuremberg to the International Criminal Court in The Hague. Arguably the Nuremberg and Tokyo trials offered little more than victor’s justice, but their contribution to the development of international humanitarian law is unquestionable. Likewise, the advent of the first permanent international criminal court in The Hague represents a further step in the development of international criminal law, despite the very obvious flaws observed during the first few cases heard.
The ad hoc tribunals have also been replete with criticisms of how universal standards of fair trial have been applied. However, their individual contribution to regional peace and stability and the development of international law continues to reinforce their importance.
The International Crimes Tribunal in Bangladesh, a purely national tribunal, could have contributed greatly to the development of international law and could have contributed to reconciliation in Bangladesh – a country that remains deeply divided more than four decades after the end of hostilities. Instead, its contribution it ranks at the very bottom of the scale.
Bangladesh emerged out of East Pakistan following a brutal, nine-month conflict that remains one of the bloodiest conflicts since the end of the second world war. Reliable data from the conflict is lacking, but the modest estimate of 300,000 deaths would put it on an equal par with the Bosnian war and the higher estimate of 3 million would put it closer to the Cambodia. Irrespective of whether one accepts the higher or lower estimate, it is quite clear that an international response was warranted and remains lacking.
It would not be an exaggeration to suggest that we have been beating the drum for international intervention in Bangladesh for some time – actually, almost as long as we have been banging the same drum for the Syrian conflict to be referred to the International Criminal Court in The Hague. Neither call has yielded any result whilst bodies continue to pile up – in Syria in the thousands and in Bangladesh in the hundreds.
The international community has maintained a consistent line in Bangladesh – trials are important to end impunity but trials must be fair. In Bangladesh they are not. There have been many critics ranging from members of the U.S. Congress to the United Nations. Recently, the government of Bangladesh has adopted an aggressive lobbying campaign to attempt to change that perception. Ironically, the government is now competing in the very same space that it has long criticized the defense of occupying: public and government relations – or more crudely put – lobbying and advocacy. The government has hired a Washington DC-based pubic relations firm and the campaign is now gathering momentum. Articles in a number of media outlets have attempted to convince the public, both in Bangladesh and internationally, that the trials are fair and that the right people have been convicted. One of them has now been executed despite the protests of Secretary of State John Kerry, UN Secretary General Ban Ki Moon, and UN High Commissioner for Human Rights Navi Pillay. Recently, members of the prosecution have countered such criticism by publishing articles in the U.S. media lauding their own achievements. That is to be expected. No one wants to be part of a losing team. However, it is the writings of a seemingly independent commentator that have sparked interest.
Professor Rafiqul Islam, a professor of law at the Macquarie Law School in Sydney, Australia, recently wrote in an article entitled “Bangladesh War Crimes Tribunal Meets High Standards” that the International Crimes Tribunal is beyond reproach and has established a system of justice in Bangladesh. What Professor Islam has presented, it is respectfully suggested, is a political monologue attempting to legitimise a fundamentally flawed process. It has nothing to do with the law.
He is quite right in contending that many of the crimes committed during the 1971 conflict were atrocious and that those found guilty of committing them should be severely punished – no right-minded person, regardless of political affiliation or sympathy, would dispute this. However, his article completely misses the point and it is deeply regrettable that a professor of law would put his own political affiliations above principled reasons of law.
Professor Islam is an academic from an internationally regarded seat of learning and he is currently conducting research at the Macqaurie Law School on the International Crimes Tribunal. It is for this reason that it is difficult to understand why he would put his professional standing in jeopardy by writing an opinion piece void of any real academic objectivity on a topic where justice, proper justice, is the real issue. Not whether or not Abdul Qader Mollah deserved to die. The line drawn between these two issues is a line that divides justice, on the one hand, with what amounts to nothing less than a state-sponsored political lynching on the other. It is important to recall the words of Justice Jackson, chief prosecutor of the International Military Tribunal at Nuremberg who stated, “If you are determined to execute a man in any case there is no occasion for a trial. The world yields no respect to courts that are merely organized to convict.”
Professor Islam claims that Mr Mollah was “given full rights of due process” during his trial before the Bangladesh International Crimes Tribunal (ICT) and that the “verdicts were based on sound information and careful procedures.” This is quite false but it would have been helpful if Professor Islam had divulged the basis on which he draws such a conclusion.