Unraveling the ICT and the Shahbag Protests

Injustice in the Making

On 28 February 2013, thousands of Shadharon Jonogon (or “ordinary people”) in Shahbag square erupted in jubilation. Delwar Hossain Sayedee, a prominent member of the Jamaat-e-Islami, Bangladesh’s largest Islamic political party, was sentenced to death by the International Criminal Tribunal (ICT). Since then, counter-protests in support of Sayedee quickly led to violent skirmishes with police. To date, over 60 deaths have been reported in the clashes.

The ICT, a domestic Bangladeshi tribunal, was set up in 2010 to try accused war criminals for the atrocities committed during the nation’s violent struggle for independence. The recent Shahbag protests have become the rallying point for demanding capital punishment for the accused.

However, the ICT and the Shahbag protests are cause for great concern. The prosecutions conducted by the ICT have been fraught with internal troubles as well as undue government interference. These issues call to question the ICT’s ability to fairly try the accused. Further, the Shahbag protests have revealed that mob rules, if spoken loud enough, can overshadow the pursuit of justice.

Presently, the Bangladesh is tense and divided nation. If the actions of the ICT and the Shahbag protest continue in their present form, then justice risks being fully usurped by vengeance and dirty politics. As a consequence, the very violence that Bangladesh had hoped to put the rest risks cycling back into exist, causing further suffering within the nation.

A Blood Stained History

Bangladesh has a tragic history of human suffering. The 1971 war of independence against Pakistan involved widespread occurrences of civilian massacres, torture, rape and displacement. The government figures (widely accepted in the country, though not independently verified) put the death toll at 3 million, with a further quarter of a million women being raped.

In 1973, shortly after the war, the government instituted the International Crimes Tribunal Act (ICTA). The goal of the ICTA was to prosecute Razakars – those who assisted Pakistani forces in committing atrocities during the war. However, then Prime Minister Sheikh Mujibur Rahman chose to repatriate hundreds of Pakistani prisoners of war and issued a blanket amnesty for Bangladeshis who had sided with Pakistan in the conflict in an effort to foster post-war peace and reconciliation, Thus, the ICTA faded out of public discussion. Only 35 years later, in 2008, did the Awami League bring the ICTA back to the fore as a critical plank in their election campaign platform.

Inadequacies of the International Crimes Tribunal

The ICT has quickly gained international attention not for what it has, but for what it is missing. In its totality, the ICT is a glaring failure in terms of the rights the tribunal has afforded to the accused. Organizations including Human Rights Watch, the International Bar AssociationAmnesty International, the UN Working Group on Arbitrary Detention, and the International Commission of Jurists have all voiced their reservations about the ICT.

The principle concern is that, due to certain constitutional amendments made in 1973, the ICT is exempted from providing detainees or accused individuals certain constitutional rights normally afforded to any citizen. Article 47(3) of the Bangladesh Constitution prohibits interlocutory appeals from the tribunal to separate court. That means, for example, that the accused cannot ask for a separate and independent court to review the constitutionality of any laws used against him. Rather, only the ICT itself can entertain such appeals. Article 47A further drives the point home, stripping the accused of the right to protection against retroactive laws applying against him (art. 31), the right to a speedy and public trial (art. 35), and the right to enforce fundamental rights (art. 44).

The effect of these amendments cannot be understated. When Sayedee sought a review of the ICT’s refusal to provide a clear definition of crimes against humanity (as art. 33 of the Constitution gives him the right to know the specific charge against him), the ICT refused to review its earlier decision. Effectively, Sayedee was left without full knowledge of the accusations against him. Later, when the ICT decided to limit the number of the defense witnesses from 48 to 20, citing s. 11(3) which allows the ICT to “confine the trial to an expeditious hearing”, Sayedee’s lawyer petitioned for a review. Again, only an internal review was permitted, and again, the ICT, unsurprisingly, stood by its prior decision.

The failures of the ICT do not stop there. The ICT’s Rules of Procedure fall significantly short of providing an accused with adequate procedural safeguards. Individuals under suspicion by the ICT can be arrested and questions without any charges being laid. Indeed, Sayedee was arrested on 2 November 2010 and was charged 11 months later, on 3 October 2011. Sayedee was fortunate, as five other detainees were held for upwards of 18 months before being formally charged.

Lacking in the ICT guidelines is the right of an interrogated detainee to remain silent or have counsel present. During Sayedee’s interrogation, his lawyers were not permitted to be present, and had to “watch” from an adjacent room – a difficult task considering there was no window into the interrogation room or transmission of the audio. When Sayedee was finally brought before the ICT and indicted on twenty counts, he was prevented from consulting with his counsel despite explicit requests to do so. Instead, the Chairman required an immediate plea of guilty or not-guilty from Sayedee.

After indictment, the defense is given only three weeks to prepare for the trial, when it must present its full case and list of witnesses (in the context of Bangladesh’s war of independence, this means going back 40 years to find the relevant witnesses). This stands in contrast to the procedures of the International Criminal Court, where the defense team is typically afforded six months to prepare their case. And so with a mere three weeks to prepare a defense, Sayedee stood in an ICT courtroom with his life hanging in the balance.

All of these shortcomings speak to the disregard of the rights of the accused in the ICT. If Bangladesh is seeking justice after 40 years, the ICT falls woefully short in that pursuit.

Government Interference in the ICT

Being a product of the Awami League election campaign, the ICT is profoundly political in nature. Of the 12 accused war criminals, nine are members of Jamaat. Of these nine, three – Sayedee, Abdul Quader Mollah, and Abdul Kalam Azad – have already been convicted, the last one in absentia. Two of the accused are members of the Bangladesh Nationalist Party (BNP). Coincidentally, the BNP forms the government opposition in Parliament, and Jamaat is one of the BNP’s close allies. Amnesty International has raised the criticism that “[n]o one was indicted for crimes committed immediately after the victory of independence forces in late 1971”.

However the most egregious interference on the part of the government came once the ICT trials were well underway. In a scathing article published by the Economist on 15 December 2012, the behavior of Mohammed Nizamul Huq – the previous Chairman of the ICT who eventually resigned due to suspicion surrounding his activities – was brought into the spotlight. The article detailed that throughout the trial of Mr. Sayedee, Mr. Nizamul was engaging in lengthy (and arguably inappropriate) conversations with a Brussels-based lawyer concerning trial matters. Within these conversations – 17 hours in length, along with 230 emails – Mr. Nizamul commented on having received pressure from the government to have the case decided by December 16, the anniversary of Victory Day, when Pakistani forces left what was to become Bangladesh. The conversations also revealed that a government official visited Mr. Nizamul and asked that he reach a verdict “as quick as you can”.

With Mr. Nizamul resigning over his questionable conduct, there no longer remained a single member of the ICT panel that had been present for all of the witness testimonies. Of the three judges on the panel, Nizamul’s replacement had head no testimony on either side. A second judge had heard none of the prosecution’s witnesses. A third judge had only heard partial testimony from the prosecution’s witnesses. Section 6 of the ICTA would technically permit the ICT to proceed despite these circumstances. However, if the ICT sought to maintain an impartial image – critical given its deeply questionable performance to that point – it would have been well advised to consider a re-trial of Sayedee. Such was recommended in separate public statements by Human Rights Watch and the British Bar Human Rights Committee.

The Government decided it would nevertheless proceed with the trial. Even more problematic, upon the appointment of the new panel, Minister Quamrul Islam commented that the panel “might take three to seven more days to complete the process”. If the ICT is meant to be an independent body, the Government’s comment on the expected timeline and behavior of the new panel treads dangerously close to the judicial role.

The final straw came in February 2013, after one of the accused, Abdul Quader Mollah, a senior Jamaat member like Sayedee, was sentenced to life imprisonment. The decision caused tens of thousands of protestors to take to the streets, demanding that Mollah be sentenced to death. Taking advantage of the intense public pressure, the Awami League brought an amendment to s. 21(1) of the ICTA (compare the original and the amendment). The amendment provides the government with the right to appeal a final decision made by the Tribunal to the Appellate Division of the Supreme Court of Bangladesh. The amendment provides the government with the necessary leeway to appeal Mollah’s sentence. A basic maxim of law is nullum crimen, nulla poena sine praevia lege poenali, meaning “No crime, no punishment without a previous penal law” (a principle contained in the International Covenant on Civil and Political Rights, to which Bangladesh is a member). It seems that Mollah’s fate has been decided. All that remains is making the ICT’s decision consistent with that fate.

Shahbag’s Widespread Support of an Unjust Process

Finally, we arrive to the topic of the Shahbag – the massive protests at Shahbag circle in central Dhaka triggered by the sentencing of Mollah to life imprisonment on 5 February 2013. The daily protests in the tens of thousands passionately demanding the hanging of all those accused of war crimes, including Mollah. While the protests at Shahbag have now died down, Shahbag, having developed into a movement, continues to remain strong. Protests in solidarity with Shahbag have spread across the country, across the world, and across social media.

In the Orwellian atmosphere of the protests, the mob’s cries for hangings have left the pursuit of justice a fading afterthought. Dr. Imran H Sarker, a key organizer of the protests, presented the Shahbag Oath on the fourth day of protests, outlining the core demands of protestors: death to Razakars, banning of Jamaat and its student wing (Islami Chhatra Shibir) as political entities, and boycotting Jamaat-affiliated institutions. Plainly absent from this oath, and the entire Shahbag protests, is any interest in (let alone calls for) fairness within the present process.

Though the protests are a product of the Shadharon Jonogon, within their ranks are well-educated Bangladeshis, like Sarker – an anesthesiologist and graduate of Dhaka Medical College. Many have even labeled the Shahbag protests a students’ movement, as many of the protest’s most vibrant supporters were born well after the war of independence. From within this educated and liberal minded class, criticism of the ICT and government interference has been a murmur at best.

The calls to ban Jamaat and boycott affiliated institutions reveal the unabashed political ends of Shahbag. While Jamaat did support Pakistani forces during the revolution, Jamaat is a duly registered political party and engages in the political process. While some Bangladeshis may resent their Islamist party line, the very nature of a healthy political climate is this spectrum of nuanced ideologies. While the protestors are seen by some to be “perserv[ing] democracy” (to quote India’s President Pranab Mukherjee), ironically, they call for the banning of a legitimate political party.

Where to Go From Here

The situation in Bangladesh is deteriorating by the day. In the interest of containing the current violence, the Government must desist in using the Shahbag protests as a political tool to pressure the ICT. While ostensibly a smart move to gain quick political points, the danger is that in Bangladesh’s tit-for-tat political climate, a future change in government leadership may lead to ugly retaliations.

Jamaat has, for its part, asserted that it would support a tribunal process that is fair, neutral, and in accordance with international standards – a call consistent with the demands from the international community. Rectify the shortcomings of the ICT so late in the process – after three convictions – may seem to be too little too late. However, with the ICT already engulfed in suspicion and with mob rules commanding influence, allowing the trial process to continue risks pushing the country further into chaos. Unfortunately, it may take Bangladesh another 40 years to realize that the injustices of one era cannot rightfully be put to rest through vengeance in another. Eventually, people will come to the streets demanding justice.

Nafay Choudhury is a Visiting Assistant Professor at the American University of Afghanistan. His research interests include comparative law, civil obligations, Islamic law and society, and South and Southeast Asia. He is a graduate of the McGill Faculty of Law in Montreal, Canada, holding a joint degree in the common law and civil law (LL.B./B.C.L.). He was previously an Arabic fellow in Qatar and was also a researcher for the Center for Islamic Legislation and Ethics in Qatar. Read other articles by Nafay.