by Toby Cadman and Lennart Poulsen
It is important that the principles of international criminal justice be recognized and supported. The official 'Day of International Criminal Justice' is held annually on 17 July to mark the anniversary of the date of the adoption of the Rome Statute of the International Criminal Court and to recognize the emerging law and practice in this area. This is a day of remembrance of victims, their relatives and those who have suffered the impact of war and the loss of innocent life and human tragedy that inevitably follow in its destructive wake.
Unfortunately, such an occasion also brings with it the opportunity for rogue governments with unenviable track records in respect of human rights violations to push themselves into the proverbial limelight such an occasion offers in an attempt to either obfuscate current opinion about their actual efforts in this important area or, as in the case of Bangladesh, to indulge in a public relations exercise. An exercise that turns a false respect for what this day is supposed to symbolize into a self-serving charade that masks itself as solidarity, but reeks of hypocrisy.
To mark the day, the Bangladesh Government's big-hitters (minus Prime Minister Sheikh Hasina herself) turned out in force. These included law minister Anisul Huq, the PM's political affairs adviser HT Imam, state minister for foreign affairs Shahriar Alam and chairman of the National Human Rights Commission, Professor Dr. Mizanur Rahman as well as other senior foreign ministry officials. The audience comprised a large gathering of western diplomats in Dhaka in an effort to get them to fawn over the incumbent government's 'efforts' to bring to justice those who had committed crimes in the 1971 War of Liberation. It was the statements made by Foreign Minister AH Mahmood Ali which attracted the most attention, sadly, for all the wrong reasons.
While it is absolutely commendable that those suspected of committing horrific crimes during the 1971 War of Liberation be brought to justice, the statements made by Mr. Ali are so far removed from reality that it warrants a robust response. The truth is that the Bangladesh International Crimes Tribunal, the so-called 'independent' tribunal set up in Dhaka in 2009 by the current government to try those accused of war crimes, crimes against humanity and genocide during the 1971 conflict, has been an unprecedented disaster and an aberration of international criminal justice. It is notable that when commentators speak of national mechanisms of justice, accountability, and reconciliation, countries such as Bosnia, Guatemala and Uganda are often mentioned, but Bangladesh is not.
Notably, the International Center for Transitional Justice marked International Criminal Justice Day by looking at five countries "where national systems proved it was possible to bring perpetrators to justice where it matters the most." It looked at Argentina, Bosnia and Herzogovina, Germany, Peru and Sierra Leone. The ICTJ works on transitional justice issues in 32 countries around the world and during 2011-2012 Bangladesh was one amongst those countries - it is no longer listed.
Mr. Ali quoted in his address the 'Father of the Nation', Bangabandhu Sheikh Mujibur Rahman who in his inaugural address to the UN General Assembly affirmed, "[for] peace to endure, [it] must be peace based on justice". The last part of this quote is the most pertinent. Indeed, Bangladeshi civilians have seen and many have felt over the last few years, at the hands of government security forces, that peace in Bangladesh is not based on justice. It is based on politics. The international community is now fully aware of the problems with these trials and acquiescence through inaction (or indifference) is simply no longer acceptable. Nor is allowing the Bangladeshi government ministers an opportunity to grandstand on this of all days.
Political bamboozling if done cleverly at the right time and to the right audience can be effective. Mr. Ali clearly had this in mind when opening his address by condemning Israel's military incursions into Gaza. Cue round of applause by an agreeable audience. Great start. He then, predictably, goes on to hark about the government's quest for justice for the victims of the 1971 conflict by restoring the, up until 2009, dormant International Crimes Tribunal Act of 1973 (the Act). He has therefore used the suffering in Gaza to advance his own Government's cause; no less reprehensible than the Israeli actions in Gaza.
The article states, "[Mr. Ali] said without being modest or reticent about it, Bangladesh should claim its due share of credit in contributing to the building blocks of the Rome Statute and the International Crimes Tribunal Act, 1973 ... was a piece of legislation that was quite unique and unprecedented for its time." In one sense he is right. In 1973, the Act was widely considered a welcome attempt to prosecute those responsible for the worst crimes committed during the 1971 conflict. The International Commission of Jurists considered that the Act had its flaws then and it has its flaws now. However, the Act itself, however flawed it may be, is not really the problem. The application of it (and customary international law generally) during the trials and the widely reported evidence of collusion between prosecutors, judges and government officials have negated any attempt to ensure real justice. It is here that the pertinence of Sheikh Mujibur Rahman's words, that for peace to endure it must be "based on justice", become all the more relevant. When uttered by Mr. Ali they simply ring false.
Mr. Ali's claim that the Bangladesh International Crimes Tribunal (ICT) "created a new paradigm in international criminal justice by allowing purely domestic courts the mandate to hold trials for the internationally defined crimes in adherence to the relevant international standards" may have placated those around the dinner table in Dhaka who do not know better. It may even have impressed them. However, there is ample evidence available in the international domain supported by independently verified reports in the international media and universal condemnation by numerous international bodies and governments (including the United Nations and the European Parliament) that these trials are far from fair. Any half-baked attempt by the Bangladeshi Government to offer those attending this event the illusion that the trials are fair is as reprehensible as it is untrue.
The mendacity of the Bangladesh government's suggestion that it is pursuing these trials "in adherence to the relevant international standards" has been exposed by its own very public interference and collusion in the trials, rendering the judgments (which have been similarly condemned by international experts as replete with legal and factual inaccuracy and bias) void of any merit. Most notoriously perhaps, was the retroactive application of legislation forced through Parliament to ensure that one of the accused, Abdul Quader Mollah's, sentence of life in jail was overturned on appeal to one of death by hanging. Such retroactive application of legislation passed after a judgment has been delivered plainly does not conform to any recognized notion of justice.
The list of problems with the trials and the improper actions of the Bangladesh government are manifold and are widely reported so are not regurgitated here in depth. I invite you however to read them.
Mr. Ali proudly proclaims that the trials before the ICT are "in full conformity with the 'complementarity' principle of the Rome Statute as it demonstrates our nation's 'ability' and 'willingness' ...to bring to closure past crimes and the wounds and trauma they had inflicted." [sic] The complementarity principle serves to allow domestic courts the initial opportunity to prosecute international crimes within their own jurisdiction. Where they are unwilling or unable to do so, such jurisdiction seizes. There have been repeated calls for a stay to the current proceedings and a transfer of the cases to a tribunal under proper international and independent control and oversight.
Mr. Ali waxes lyrical about the various protections and novel elements of the Act which suggests that when drafted it was ahead of its time. It was not. By today's standards of procedure and due process, it is conspicuously deficient.
Bangladesh has much to answer for in respect of its deliberate actions over the last three years to undermine international criminal justice through political influence and judicial ineptitude and corruption. Bangladesh could have made an important contribution to international criminal justice and this is a missed opportunity. Perhaps at some point in the future, on 17 July, a Bangladeshi minister will have the integrity and the courage to stand up and admit that they got it wrong. Until that day comes, or the current trials are halted and placed under international control, the Bangladesh government should not speak about justice.
* This article was co-authored by Toby Cadman and Lennart Poulsen who serve as foreign counsel for the defendants at the International Crimes Tribunal in Bangladesh. They are both barristers at 9 Bedford Row International in London.
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