The International Crimes Tribunal is fundamentally flawed.
Independent and impartial prosecutors are an integral part of a legal system based on respect for the rule of law. Their role is to ensure that crimes are fairly investigated and prosecuted in a manner consistent with the interests of justice. In recognition of this, the United Nations has issued “Guidelines on the Role of Prosecutors.” These guidelines require that prosecutors act at all times act impartially. This principle of impartiality stems from the concept that “not only must justice be done; it must also be seen to be done.” This is a basic tenet of an open and transparent justice system. The duty to prevent any appearance of bias falls on the prosecution as much as it does on the judiciary.
Tureen Afroz, a government-appointed prosecutor at the Bangladesh International Crimes Tribunal, is right to state that the crimes committed during the 1971 conflict were atrocious (“Real Justice for Bangladesh” April 30, 2014). Indeed, those responsible, on all sides, should be brought to justice and if proven to be guilty, severely punished. But this misses the point. The point is that justice, however delayed, is not served by denying it to those accused of such crimes. The real purpose of the tribunal, it seems, is to legitimize state-sponsored revenge without regard for the fundamental and universally recognized principle that those accused (dare I suggest it?) are innocent until proven guilty.
Whilst as a defense lawyer I am expected to act in the interest of my clients, Afroz is required to adhere to a higher standard of impartiality. A prosecutor must be expected to independently and impartially consider the evidence before her and bring charges against those that bear criminal responsibility. Afroz has campaigned long and hard for the trials to take place, and there is no criticism of that at all; she is rightly campaigning as a human rights activist. However, should the system be held to a higher standard? One would certainly hope so when the ultimate sanction is the death penalty.
Afroz is therefore wrong to imply that politics does not play a big role in the courts’ decisions. Very wrong.
It is unfortunate, albeit not unsurprising, that advocates for the tribunal (in this instance a senior prosecutor), despite overwhelming, independent and reliable evidence to the contrary, continue to publicly peddle blatant untruths by suggesting that the accused receive a fair trial. The one thing that has been proven beyond reasonable doubt, possibly the only thing, is that they do not.
Afroz claims that the International Crimes Tribunal is “independent in the exercise of their judicial functions.” Remarkably, she goes on to insist that the accused “are guaranteed all universally recognized rights to defend their positions…[including] the right to cross-examine prosecution witnesses … and the right of appeal.” She also declares that the trials “are evidence-based…[and that]… there is no room for political considerations.” She mentions the imminent judgments in the cases against Motiur Rahman Nizami and Delwar Hossain Sayedee and purports that “political orientation or association is a non-issue in the ongoing trials.”
This is simply not true.
It is worth noting that the vast majority of those accused are members of the Jamaat-e-Islami party – the Islamist opposition party to the incumbent Awami League. Every judgment to date has, quite unashamedly, dedicated considerable attention to the role of the Jamaat party during the conflict (often describing those on the other side as “heroic freedom fighters”). An accused’s association, even if only indirectly, with Jamaaat has often been the key basis for his conviction, even in the absence of any reliable evidence in respect of the actual crimes alleged.
For example, in the case of Prof. Ghulam Azam, the accused’s affiliation and membership of Jamaat was held to be the primary reason for his conviction of a range of substantive crimes of which the only evidence was non-attributable and in most cases “multiple” hearsay articles from old newspapers. Moreover, government ministers, including Prime Minister Sheikh Hasina herself, have repeatedly made public statements condemning members of the Jamaat party as “war criminals” and urging their swift executions.
Afroz, with respect, is incongruous in suggesting that the trials are not politically motivated. Notably, she is one those leading for the entire party to be put on trial for having committed war crimes, something she claims was done at Nuremberg. Sadly, as a cursory glance of the proceedings in Nuremberg will demonstrate, she is quite wrong in this regard as well. Individuals belonging to political parties were tried and convicted, but parties were not put on trial, nor should they be. Individuals commit crimes and it is individuals that must be put on trial.
The international community (including key United Nations bodies, major human rights groups, various political leaders and legal experts as well as members of the U.S. Congress, to name but a few) is unanimous in its condemnation of the trials before the tribunal in that they have failed to meet even the minimum acceptable standard of fairness. It is also incontestable that such criticism is based on compelling evidence of gross misconduct on the part of the judiciary, prosecution and Bangladeshi government. This position is supported by reasonable and objective analysis by neutral observers into the appropriate standards of justice as established by customary international law and set out in the International Covenant on Civil and Political Rights, to which Bangladesh is bound. These safeguards exist to protect an accused and to ensure he receives a fair trial and are even more stringent in capital cases. In respect of the trials before the tribunal, these standards and procedural safeguards have been wilfully and repeatedly ignored.
Afroz predictably fails to mention in her article any of the opposing views, documents, transcripts, audio recordings and statements from various international commentators and publications (of which there are many). For instance, in December 2012, The Economist revealed in a lengthy and thoroughly researched report the vast scale of the corruption and collusion between judges, prosecutors, third parties and the government. The various incidents described therein, gathered from many hours of recovered Skype conversations and emails between the former presiding judge and an unaffiliated (and undisclosed) third party, Dr Ziauddin Ahmed, laid bare the scale of this collusion.
Afroz’s assertions in her article that the trials before the International Crimes Tribunal are fair and not politically motivated are anathema to the international public perception of these trials. She is, to put it bluntly, plain wrong.
The pursuit of justice for the victims of the undeniable atrocities that occurred during 1971 is indeed important. However, justice will not be achieved, nor will closure for the victims and their relatives be found, through arbitrary executions following an inherently flawed and fundamentally unfair trial process, however hard its supporters try to paint over the very deep cracks.
The author is the international defense counsel at the Bangladeshi war crimes tribunal.