September 18, 2013
Here are the views of two international human rights organizations, and one international jurist organization to the appellate division decision on Quader Mollah which sentenced him on 17 September 2013 to death (see here for details of offense and here for what might happen now).
Note: emphasis added
Human Rights Watch (please note that after providing this statement, HRW issued a slightly amended more formal statement, which can be accessed here)
The verdict handed down by the Appellate Division of the Supreme Court of Bangladesh in the war crimes trial against Abdul Qader Mollah, which reversed a prior life imprisonment for murder as a crime against humanity charge and sentenced him to death, is based on the retroactive application of amended legislation.
When the Mollah trial judgment was handed down on February 5, sentencing him to life in prison, there was no provision in the International Crimes Tribunal (ICT) Act allowing the prosecution to appeal against an acquittal. In the face of large public protests demanding the death penalty, the cabinet proposed amendments to the ICT Act, which parliament duly passed on February 17. These amendments allowed the prosecution to appeal the sentence, and decreased the time for an appeal to be completed.
The amendments are a clear violation of the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a state party. Article 14 of the ICCPR states that “no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”
The prohibition on retroactive penalties is one of the fundamental protections of the rights of the accused in both international law, and for that matter in Bangladeshi law as well. Without this protection, governments would simply keep amending laws whenever faced with a verdict they didn’t like.
An amendment to the Bangladeshi constitution which strips those accused of war crimes of certain fundamental rights should be repealed to ensure equality and due process of law.
Human Rights Watch noted that it is precisely because these accused are considered beyond the ambit of constitutional protection that allows the Attorney General, speaking after the verdict, to declare that a constitutional review of the death sentence was not applicable to Mollah and that the case is now over. The only possibility, the Attorney General said, was for Mollah to apply for presidential clemency.
Human Rights Watch has long called for justice for the 1971 atrocities. People in Bangladesh have already waited far too long for justice. But justice depends on fair trials and due process of law. The application of retroactive legislation to hand someone the death penalty calls into question the validity of these trials. One of the goals of the trials was to show that justice had been done, but the conduct of the government risks the further polarization of society and making people like Mollah into martyrs. We hope that the courts and government will think and make fair trials, not convictions, their first priority.
Human Rights Watch is opposed to the death penalty in all circumstances an irreversible, cruel and degrading punishment.
Instead of giving in to public pressure, the government must now do the right thing and seize this moment to join the international community in doing away with this barbaric practice.
Death sentence without right of judicial appeal defies human rights law
Bangladesh should immediately commute the death sentence of Abdul Quader Mollah, Amnesty International said after the Supreme Court increased his sentence from life imprisonment to death following an appeal by the government.
Mollah, a senior leader in the opposition Jamaat-e-Islami party was first sentenced to life imprisonment for crimes against humanity by the Bangladeshi International Crimes Tribunal (ICT) in February 2013. The tribunal was set up in 2010 to try those accused of committing war crimes during Bangladesh’s 1971 independence war.
“We are very concerned about the Supreme Court’s ruling and the apparent relentless effort by the government to ensure that Mollah could be put to death. We urge Bangladeshi authorities to commute his death sentence, and to impose a moratorium on executions as a first step towards abolishing the death penalty,” said Abbas Faiz, Amnesty International’s Bangladesh Researcher.
The death sentence was handed down by the highest court in the country, giving Mollah no chance to appeal. The imposition of the death sentence without the possibility of appeal is incompatible with Bangladesh’s obligations under international human rights law.
“Imposing a death sentence without the right of judicial appeal defies human rights law. There is no question that the victims of Bangladesh’s independence war deserve justice, but one human rights violation does not cancel out another. Executions are a symptom of a culture of violence rather than a solution to it,” said Faiz.
“This is the first known case of a prisoner sentenced to death directly by the highest court in Bangladesh. It is also the first known death sentence in Bangladesh with no right of appeal.”
Amnesty International opposes the death penalty in all cases without exception, regardless of the nature or circumstances of the crime; guilt, innocence or other characteristics of the individual; or the method used by the state to carry out the execution.
The Attorney General and the Law Minister have said there would be no possibility of a review of the death sentence by the Supreme Court.
Multiple appeals against death sentences, as well as a final review of the highest court ruling on them, are available to prisoners sentenced to death by other courts in Bangladesh.
Even prisoners sentenced by the ICT have the right to a judicial appeal.
The death sentence imposed on Abdul Quader Mollah by the highest court in Bangladesh brings to five the number of death sentences linked to ICT trials. The other four – Abul Kalam Azad , Delwar Hossain Sayedee, Muhammad Kamaruzzaman and Ali Ahsan Mujaheed – were sentenced to death by the ICT earlier this year.
Commuting Mollah’s death sentence will be in line with the trend set by the International Criminal Court and all other international criminal courts established since 1993. They have all excluded the death penalty as a sentence for the most horrific crimes: crimes against humanity, genocide and war crimes.
International Commission of Jurists:
Bangladesh: Abdul Quader Mollah death sentence violates international law
The ICJ said that the death sentence handed down today by Bangladesh’s Supreme Court against Abdul Quader Mollah is incompatible with international principles of fair trial.
If carried out, the sentence would violate his right to life and freedom from cruel, inhuman, or degrading punishment.
On 17 September 2013, the Appellate Division of the Supreme Court of Bangladesh upheld the prosecution’s appeal to impose the death sentence on Abdul Quader Mollah (photo), the assistant Secretary-General of Jamaat-I-Islami.
Abdul Quader Mollah had received a life sentence on February 5, when the International Crimes Tribunal (ICT) convicted him on five counts, including murder and rape.
“The prosecution’s appeal to impose the death sentence on Abdul Quader Mollah was based on a law that was not in force when he was first convicted, and applying that law retroactively, especially for the death penalty, violates international law,” said Sam Zarifi, ICJ’s Asia-Pacific Director.
On 17 February 2013, Parliament passed an amendment to the International Criminal (Tribunals) Act 1973 to enable prosecutors to appeal a life sentence and seek the death penalty.
Before this amendment, the prosecution was only allowed to appeal if the accused was acquitted.
The ICJ says the retrospective application of the amendment in Abdul Quader Mollah’s case is incompatible with Bangladesh’s obligations under the International Covenant on Civil and Political Rights (ICCPR), including Article 15, which prohibits the imposition of a heavier penalty than provided for at the time the criminal offence was committed.
“Judgments such as these highlight the serious problems with the war crimes tribunal that undermine its legitimacy,” Zarifi further said. “The wounds of war can only be healed through a fair and transparent trial process that meets international standards of fair trial and due process of law.”
“It is essential that those responsible for committing atrocities during the Bangladeshi war of liberation are prosecuted and brought to justice,” Zarifi added. “But the death penalty perpetuates the cycle of violence and is a perversion of justice, and all the more so when it is imposed in violation of due process.”
The ICJ considers the death penalty in all cases to constitute a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading punishment.
The ICJ calls on Bangladesh to join the great majority of States around the world in rejecting the use of the death penalty.
To that end, Bangladesh should impose a moratorium on the practice and take steps towards its abolition, as prescribed by repeated United Nations General Assembly Resolutions.