The atrocities committed during the 1971 conflict still haunt Bangladesh and efforts to bring justice are essential for the country to moving forward without the heavy burden of impunity. The hundred of thousands of victims and survivors deserve that justice is done and seen to be done. For the sake of posterity, the International Crimes Tribunal must uphold due process rights and guarantee fair trials. Unless the defence is able to bring witnesses and challenge the prosecution case free from harassment and intimidation and unless the threat of the death penalty is removed from its books, the ICT will have failed the victims and the promise of justice, and it will be rightfully consigned to the annals of history as a politically motivated exercise of vengeance.
No Peace Without Justice (NPWJ) commends the determination of the Government of Bangladesh finally to bring an end to the culture of impunity that has existed for more than 40 years for the massive atrocities committed during the nine-month 1971 conflict, from which Bangladesh emerged as an independent State. As with any conflict, the senseless loss of life and human suffering was experienced on all sides. All those who suffered during the conflict have a right to see justice through an independent and impartial judicial process.
Even after four decades, the call for justice is shared not just by the victims of atrocities, but by the whole of Bangladesh, as a country. The establishment of an International Crimes Tribunal (ICT) was a key promise on the basis of which the BLA-led Grand Alliance received a strong popular mandate and Bangladesh’s commitment to justice was reaffirmed when it became the first South East Asian State Party to the International Criminal Court in 2010.
The ICT, which began its work in March 2010, has an historic mission to close this traumatic chapter and redress the historical burden of atrocities that has accompanied Bangladesh since its birth as a country. It can fulfil this mandate by bringing to justice those who ordered and committed widescale atrocities; providing acknowledgement and redress to countless victims; and creating an undeniable factual record of the events that reflects the real experiences of all affected communities.
The ICT’s obligation and responsibility is, therefore, not just to punish perpetrators who are proved guilty beyond a reasonable doubt, but to provide a fair process that is explained to victims and to the people of Bangladesh, so that they can understand and follow the proceedings and feel that justice is being done. Having expressly excluded any investigations of Pakistani Army officers, who are widely believed to bear the greatest responsibility for the crimes committed, and having focussed its investigations on the current leadership of opposition political parties for their role during the conflict, it is now up to the ICT to demonstrate its ability and willingness to conduct proceedings with fairness, impartiality and strict adherence to due process.
Should the ICT fail to be seen as applying the highest international standards in the enforcement of crimes under international law, even as a domestic tribunal, then it will have failed in its historic mission. Furthermore, such a failure would make it inevitable that a future government will negate all of the tribunal’s achievements and promote revisionist policies that will glorify perpetrators and vilify the victims. In particular, any application of the death penalty for individuals being tried by ICT will virtually guarantee that the process will be viewed by opponents and potential supporters alike as a clumsy attempt to exact political revenge on opposition leadership under the guise of fighting impunity.
The continued exclusion of due process guarantees enshrined in Constitution of Bangladesh as foreseen in the International Crimes (Tribunal) Act 1973 and its 2009 amendment bring discredit to the Tribunal. ICT supporters point out that the provision is needed to address retroactivity concerns (international human rights law specifically allows retroactive jurisdiction for crimes under international law). However, the ICT has since expressly declined application of Bangladesh due process norms in its proceedings, opening itself to further legitimate criticism not only by its opponents, but also by those who should by rights be its most prominent supporters in the international community.
Bangladesh’s failure to address the legitimate concerns of human rights organisations whose mandate is to fight impunity for war crimes, crimes against humanity and genocide, all of whom have voiced strong concerns about the application of due process by the ICT, reinforces the claims of those who are bent on rewriting history to negate the crimes. Even official rulings by United Nations bodies are being ignored: after more than one year, Bangladesh has still not responded to a formal ruling issued on 3 October 2011 by the United Nations Working Group on Arbitrary Detention that ICT pre-trial detention of one BNP and five JEI leaders is “arbitrary” and in breach of article 9 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights, to both of which Bangladesh is a party. The worst case scenario, whereby the ICT will have contributed to turning into heroes those it was meant to punish and will have demolished the chance for victims to have durable acknowledgement of their suffering, is already upon us.
To keep the promise of justice for victims that the ICT’s establishment represented, Bangladesh needs immediately and categorically to exclude the death penalty for individuals accused by ICT and apply in full all due process guarantees, including protection of defence witnesses, potential witnesses and counsel from harassment and intimidation; full application of the presumption of innocence; and all other due process rights, to the highest international standards. As trials are ongoing, the ICT can still ensure that these standards are applied and that they are seen to be applied.
No Peace Without Justice urges the Government of Bangladesh and the ICT to assure a real chance for durable justice for the thousands of victims and their families, so that the work of the ICT can sustain the test of time. This includes removing the option of the death penalty and according all due process rights guaranteed under international law and under Bangladeshi Constitution to those accused before it. It is essential that the legislative framework and procedures adopted by the Bangladeshi Government comply with its treaty obligations and ensure that the trial process is conducted in a fair and transparent manner, in order to prevent its proceedings from being easily dismissed by a future government as unjust, widely condemned, politically motivated judicial vengeance.
Finally, No Peace Without Justice calls for the UN Human Rights Council to activate its Special Procedures to conduct an urgent re-assessment of the ICT process, which will provide an opportunity for Bangladesh and the ICT to demonstrate its ability and willingness to conduct fair impartial and independent proceedings.
For further information, contact Alison Smith on asmith@npwj.org or +32-2-548-3912 or Nicola Giovannini on ngiovannini@npwj.org or +32-2-548-3915.
