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War Crimes
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War Crimes
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War Crimes
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Death
Dhaka
!"
John Cammegh examines how the Bangladesh International
Crimes Tribunal failed a nation
media reportage. Rare eyewitness accounts have been largely
discredited: in Sayedee two leading prosecution witnesses,
exposed as Awami League activists who had interfered with
the investigation, wildly contradicted earlier statements. As
the trials failings became public, further witnesses refused
to testify, causing the prosecution to invoke an elastic ICTA
provision allowing for statements to be read into evidence
where witness attendance cannot be procured without an
amount of delaywhich the tribunal considers unreasonable
(s19(2)). The tribunal duly admitted fteen witness statements-
each going to charges hitherto unsupported by evidence.
But the witnesses had been present all along: a copy of the
prosecutions Safe Home register leaked to the defence showed
each had been in protective custody during the trial. When the
Tribunal refused to exhibit the register, one of the fteen duly
testied for the defence, conrming he had refused to act as a
prosecution witness because his statement had been fabricated.
Another of the fteen, Shukhoronjon Bali, chose to testify for
the defence regarding Sayedees alleged role in a notorious
murder: on arrival at court he was abducted by state militia and
vanished. Defence pleas to Mr Justice Nizamul Huq, chairman
of International Crimes Tribunal One (ICT1), for assistance were
predictably rejected: in 1992 Huq had played an instrumental
role in the Peoples Court, a public mock trial culminating
in death sentences for many of the ICT accused, including
Sayedee. ICT1 rejected a defence petition for Huqs recusal and
attempted to silence the 9 Bedford Row team by complaining
unsuccessfully to the Bar Standards Board.
When originally constituted in 2011, ICT1 comprised Justices
Fazle Kabir and Zakir Ahmed as well as Nizamul Huq. After
further arrests in 2011, and four months into the Sayedee trial,
Kabir was transferred into ICT2 to preside over the trials of
other Jamaat gures. His replacement judge in Sayedee heard
just one witness before the prosecution closed their case. When
the moderate Zakir Ahmed unexpectedly resigned citing health
reasons (according to the Law Ministry) in August 2012, his
replacement in ICT1 heard only part of Sayedees defence case,
leaving the chairman, Nizamul Huq, as the only remaining
judge to have started trial. But in December Huq too was gone,
humiliated by a scandal that exposed government interference
T
here is a sense of foreboding in Bangladesh: in
January the country will go to the polls amidst
rising civil disorder. The government is nervous: a
series of crackdowns on opposition groups, crippling
strikes and industrial tragedies, epitomizing the traditional
disregard of workers rights and safety, mean the opposition
Bangladesh National Party (BNP) is likely to regain power. In
fact no incumbent government has ever been returned to power
in Bangladesh, where short term score settling has always
triumphed over consensual change.
In 2009 Prime Minister Sheikh Hasinas Awami League
swept to victory pledging to try the war criminals of the 1971
Liberation War. But whereas modern tribunals have actively
promoted reconciliation and the rule of law, Bangladeshs
International Crimes Tribunal (ICT) remains a political
gimmick, legitimized by an outmoded statute (International
Crimes Tribunals Act 1973 [ICTA]). Rights of the accused are
ignored while prosecutorial abuses are tolerated; investigators,
prosecutors and judges are government-appointed, there is no
right to interlocutory appeal, no right to privileged communication
with the accused, insum cient time to prepare a defence, and,
remarkably, no denition of crimes (see Justice Without Politics?
by John Cammegh, Counsel, February 2012).
With up to three million victims 1971 saw one of the most
brutal conicts in world history. Albeit forty years on, properly
conducted trials might have achieved great things. But there is
surely no point in seeking justice unless it is fairly applied: the
governments relentless pursuit of leaders of Bangladeshs largest
Muslim party, Jamaat e Islami, resembles a Stalinist purge. The
ICT has polarized rather than united the nation, reigniting chaos
that has left hundreds dead since it opened in 2011. With Jamaat
recently banned from contesting it the election is likely to be
violent.
The Sayedee Case: Skypegate and the strange
disappearance of Shukhoronjon Bali
Since the government barred the 9 Bedford Row team from
Bangladesh in 2011 we have advised defence teams from
London. Since ICTA specically dispenses with rules of evidence,
prosecutions have largely relied on spurious hearsay and bogus
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and destroyed the ICTs international reputation.
In December 2012 the Economist received
a series of leaked emails and Skype recordings
involving Nizamul Huq and a Brussels-based
Bangladeshi lawyer, Dr Ahmed Ziauddin, self
styled Director for Bangladesh Genocide Studies
who had provided expert evidence for the
prosecution in Sayedee. The Economist revealed
that Ziauddin, apparently acting on behalf of the
Law Ministry, had urged Huq to speed up the
trials of Sayedee and Jamaats Amir, Professor
Ghulam Azam, with promises of swift promotion
to the Supreme Courts Appellate Division. It also
suggested that rather than resigning through
ill health Zakir Ahmed had been removed at
the behest of Law Minister Shaq Ahmed: in
an interview published immediately after the
Economists expose Zakir appeared to conrm
this.
In light of this ICT1s chairman, Nizamul Huq,
resigned at once. The Tribunal vainly summoned
Economist journalists, citing contempt. Both
Shaq Ahmed and the prosecutor promised that
Sayedee and Azam, as well as those cases now underway in ICT2,
would be unaected. This was remarkable, not simply because
Skypegate had fatally damaged the Tribunals legitimacy, but
because ICTA usually such a convenient prosecutorial tool fails
to address the situation whereby not a single judge remains on the
bench throughout a trial.
In desperation, the government transferred Fazle Kabir back to
ICT1 as chairman to keep Sayedee and Azam on the rails. Defence
petitions for retrial were rejected, as was Human Rights Watchs
demand for an independent judicial inquiry as these cases each
carrying the death penalty continued unabated despite no
judge having heard all the evidence. In February 2013 Sayedee
was convicted and sentenced to death, the Tribunal having
earlier rejected a defence application to exhibit a video in which
Shukhoronjon Bali conrmed that the statement he had supposedly
given to the prosecution alleging Sayedees role in murder had been
concocted. Professor Azam, now aged 90, fared little better: after
a prosecution case that failed to link a single death to his wartime
activities, and a defence case that suered witness intimidation and
arrest by state police, he was sentenced to 90 years imprisonment.
Apparently the Tribunal felt this was lenient.
The Mollah Case: an illegal execution
Meanwhile, the various judges in ICT2 swiftly disposed of the
cases of Mollah, Kamaruzzaman and Mujahid: each alleging
crimes against humanity, each reliant on far-fetched hearsay
reported by aky witnesses, many of whom were shown to
be beneciaries of the current regime. In the aftermath of
Skypegate the bench had become impatient: disgracefully, after
prosecution cases that had taken months, the defence in each
trial was allowed to call fewer witnesses (six, four and three
respectively) than there were charges on each indictment.
When he was convicted in February 2013 Mollahs reaction
to avoiding the death penalty he ashed a V for Victory sign
at the press outside court provoked demonstrations up to
500,000 strong demanding his execution: swift to capitalize on
the spontaneous outpouring of sentiment of the people, Hasina
cynically amended the law, allowing the prosecution to appeal
retrospectively for the imposition of the death penalty a measure
clearly prohibited by customary international law. To restrict the
defence even further, the time limit for ling complex appeal
pleadings was halved to 30 days. In such a febrile atmosphere it
was no surprise when, in September, the Supreme Court Appellate
Division freshly swelled by government appointees overruled
ICT2 and decreed that Mollah be executed along with Sayedee,
Kamaruzzaman and Mujahid, who had been convicted for crimes
against humanity and sentenced to death earlier in the year.
Each judgment was a work of awed reasoning based on feeble
evidence barely rising above idle gossip, the perils of which were
neatly illustrated by subsequent revelations concerning one of
Mollahs star witnesses.
One of the gravest allegations against Mollah was that he and
others had broken into a house containing four young girls and
their parents, all of whom were murdered except one of the girls,
Momena Begum. Defence enquiries later revealed that when she
told her story to a historian at Dhakas Liberation War Museum
in 2007 Begum stated that she had not been present during the
incident. In her 2010 witness statement she changed her story,
apparently telling the ICT investigator that she had been present
after all, and that the assailants were Pakistani soldiers.
Crucially, this account again made no reference to the accused.
In oral evidence, Begums account was inconsistent with
both previous statements. She described witnessing her fathers
abduction and the murder of her mother and sisters (one of whom
she alleged was raped) as she hid under the bed and for the rst
time stated that Mollah had been present albeit she based this
allegation on unattributed hearsay.
ICT2s bench neglected to mention Begums 2010 statement in
its Mollah judgment; earlier they had refused to admit her 2007
account into evidence on the basis that the document tendered
by defence counsel was a photocopy of the original. This ruling
was somewhat disingenuous given the benchs previous rejection
of a defence application to exhibit the museums documents.
When the defence sought Begums recall in order to challenge
her on the 2010 statement the bench refused that too, ruling this
was a tactic to cause unreasonable delay. Perhaps an underlying
sense of guilt prevented ICT2 from passing the death sentence
after convicting Mollah on Begums evidence: but with the Prime
Ministers populist intervention the Supreme Court ruled he must
hang anyway.
The strange reappearance of Shukhoronjon Bali
As civil disorder intensied, no single event provoked such
Abdul Quader Molla, 64, the fourth-
highest ranked leader of the Jamaat-e-
Islami party, gestures at the central jail in
Dhaka on February 5, 2013.
suggested that rather than resigning through
ill health Zakir Ahmed had been removed at
the behest of Law Minister Shaq Ahmed: in
an interview published immediately after the
s expose Zakir appeared to conrm
In light of this ICT1s chairman, Nizamul Huq,
resigned at once. The Tribunal vainly summoned
journalists, citing contempt. Both
Shaq Ahmed and the prosecutor promised that
as well as those cases now underway in ICT2,
pleadings was halved to 30 days. In such a febrile atmosphere it
was no surprise when, in September, the Supreme Court Appellate
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intense bloodshed as when Sayedee, Jamaats leading cleric, was
sentenced to death in February 2013. By May, the death toll had
been put at 150, with over 2000 injured. Condemning the violent
crackdown Human Rights Watch reported that security forces
used rubber bullets and live ammunition improperly or without
justication, killing some protesters in chaotic scenes, and
executing others in cold blood.
Small comfort, then, that in May Shukhuronjon Bali was
unexpectedly tracked down to a Kolkata prison having been
arrested and detained by Indian frontier guards. According to an
independent Bangladeshi newspaper, New Age, Bali claimed that
after his abduction he was held in solitary connement in a Dhaka
police station before being blindfolded, driven away and dumped
at the Indian border. When asked by New Age to comment Dhaka
police denied all knowledge. Sum ce to say, calls from Human
Rights Watch and others for an independent investigation into
the abduction of a witness intending to testify as to the falsity of
a statement allegedly made by him that directly led to Sayedees
conviction and death sentence were ignored. At the time of
writing, Balis whereabouts is unknown.
Death penalty in absentia: Chowdhury Mueen Uddin
Early in 2013 the prosecution widened the net by charging
Chowdhury Mueen Uddin with his alleged role on the dreadful
night of 15 December 1971 when, just hours before their
surrender to the intervening Indian army, the anti-liberation Al
Badr death squads abducted and murdered thousands of Dhakas
intellectual and professional classes. Alleged to be both an Al
Badr commander and a prominent member of Jamaat E Islamis
student wing, Mueen was tried for mass murder as crime against
humanity. He was swiftly convicted on 4 November 2013 and
sentenced to death. But this case was dierent: Mueen is a joint
UK/Bangladesh citizen who has lived and worked in London for
decades. Keen to avoid political embarrassment, the Bangladesh
government chose not to apply for Mueens extradition and
he was tried in absentia. Apparently he was represented by a
government-appointed lawyer; apparently the lawyer didnt try
too hard. The case has been widely condemned in the UK and
elsewhere: whilst formal dissent by members of the House of
Lords led by Lord Carlile hasnt been formally endorsed by the
UK government, the fall-out from this case has hardly improved
the reputation of either the ICT or the Bangladesh government.
Today, despite international condemnation, the Awami League
promise more trials. Prime Minister Hasina is trapped now: she
cant aord to alienate hardline supporters by softening her
position, but holding course makes widespread violence inevitable,
not to mention the gathering storm of Islamic extremism should the
executions go ahead. Ironically, an election defeat by the BNP, which
has promised to fundamentally review both the ICT and its tainted
judgments, may prove to be her saviour. Otherwise, she might nd
that the monster she created may soon turn on its maker.
John Cammegh, 9 Bedford Row
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