Bangladesh: Post-Trial Amendments Taint War Crimes Process
|Publisher||Human Rights Watch|
|Publication Date||14 February 2013|
|Cite as||Human Rights Watch, Bangladesh: Post-Trial Amendments Taint War Crimes Process, 14 February 2013, available at: http://www.refworld.org/docid/511e35c22.html [accessed 29 August 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Retroactive legislation that violates fair trial standards undermines the legitimacy of the work of Bangladesh's International Crimes Tribunal (ICT). The amendments were offered to enable an appeals court to overturn a life sentence imposed on Abdul Qader Mollah and impose the death penalty.
Amid controversy over the conviction and sentencing of people accused of crimes during the 1971 independence war with Pakistan, Human Rights Watch also called on the security forces to restrict their use of force and firearms only to situations in which it is absolutely necessary.
"Justice for victims of war crimes and other serious abuses during the 1971 war of liberation is essential," said Brad Adams, Asia director at Human Rights Watch. "But a government supposedly guided by the rule of law cannot simply pass retroactive laws to overrule court decisions when it doesn't like them. The Bangladesh government should pause, take a deep breath, and repeal the proposed amendments, which make a mockery of the trial process."
The ICT was established to hold accountable those responsible for grave violations of international law during Bangladesh's war of independence in 1971. Most of the accused in the war crimes cases are longstanding senior leaders of the opposition Jamaat-e-Islaami party, which opposed Bangladesh's independence from Pakistan.
On January 21, 2013, the ICT handed down its first judgment, against Abu Kalam Azad. He was tried in absentia, found guilty of genocide and crimes against humanity, and sentenced to hang.
In the second verdict, announced on February 5, the ICT convicted Mollah, a leading member of Jamaat, on five out of six counts, including of murder and rape as crimes against humanity and war crimes, and sentenced him to life in prison. He was acquitted on one count of murder.
Government officials, members of the ruling Awami League party, and segments of the public reacted with outrage that Mollah was not sentenced to death. Large crowds assembled in the Shahbag area of Dhaka demanding the death penalty.
The government responded by proposing amendments to the ICT law, allowing the prosecution to appeal the sentence, and decreasing the time for an appeal to be completed. On February 14, the draft amendment was offered in parliament and is expected to be approved on February 17. Until this verdict, the prosecution was only allowed to appeal if the accused was acquitted, and 90 days were allowed for appeals.
The amendments violate 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."
Prime Minister Sheikh Hasina was reported by media as saying she would talk to the judges to convince them to take the sentiments of the protesters into account in formulating their decisions. Law Minister Shafique Ahmed said that the amendment had been drafted to ensure equal rights for both the government and the accused. When the bill was offered in parliament, the deputy speaker welcomed it by saying, "This is the voice of parliament."
Protesters have called for Jamaat and its student wing, Islami Chhatra Shibir, to be banned, and for further amendments of the ICT law to prohibit presidential pardons for those convicted by the ICT, and to permit closure of Jamaat-related businesses and media outlets.
Government-supported protests and the comments of the prime minister and other government and Awami League officials may affect the possibility of fair trials in ongoing and future cases, Human Rights Watch said. Reliable sources have told Human Rights Watch that some defense witnesses have decided not to appear in court, fearing reprisals. Human Rights Watch is concerned that judges may be afraid to give any sentence other than the death penalty in other cases.
"Instead of explaining to the public that the separation of powers and the rule of law mean accepting the decision of the courts, the government has now directly intervened in the trial process," Adams said. "Convictions of those responsible for the 1971 atrocities is important for the country, but not at the expense of the principles that make Bangladesh a democracy."
Although the demonstrations were initially peaceful, violence has erupted in the last few days. Human Rights Watch was told by the spokesperson at Jamaat-e-Islaami that some members of its youth wing, Shibir, threw homemade bombs at the police, and that the police retaliated against these attacks. Photographs have emerged, taken by unknown people, which appear to show both police and protesters resorting to violence. In one photo at least, police in riot gear are pictured standing next to men in civilian clothes, who appear to be firing on protesters.
Human Rights Watch has also received credible reports of an arson attack on the offices of Naya Diganta, a media company politically affiliated with the Jamaat-e-Islamiya party. At least 30 people were injured on February 12, including the editor of the newspaper Prothom Alo, who sources told Human Rights Watch was severely hurt by rubber bullets in his chest. The editor and offices of Amar Desh, which has published articles critical of the ruling Awami League party and of the war crimes trials, have reported threats.
The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officers state that "law enforcement officials must not use firearms against persons except in self-defense or defense of others against the imminent threat of death or serious injury."
"The war crimes trials are highly emotive and politically charged issues in Bangladesh, and protesters on both sides feel strongly that they have been aggrieved by the most recent conviction," Adams said. "It is critically important for the government to issue clear directives to its security forces to conduct themselves with restraint.