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In Bangladesh, the flawed path to accountability

David Bergman
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REASONS FOR CONCERN:Though there is much in the protests to support, the extreme demands being made do not fit in.PHOTO: AP
REASONS FOR CONCERN:Though there is much in the protests to support, the extreme demands being made do not fit in.PHOTO: AP

A peaceful mass secular protest involving people from all walks of life, spearheaded by a tech savvy young generation, apparently independent from political parties, seeking accountability for war crimes committed in 1971.

This has been Shahbag, a square in the centre of Dhaka, Bangladesh, an (almost) non-stop protest since February 5.

The positive aspects are obvious to all those interested in a secular Bangladesh, who support accountability for the terrible atrocities committed during the nine-month-long war.

Hundreds of thousands are estimated to have died in the war, many allegedly with the assistance of pro-Pakistani militias whose members are said to have included Jamaat-e-Islami party members and leaders at the time.

Four decades later the Jamaat is the country’s fourth largest party and a key ally of the main Opposition party with many of its leaders and activists powerful social actors wielding significant influence in a country, much of which still remains overwhelmingly conservative.

The focus of the Shahbag protests, on accountability for 1971 war crimes and a secular politics, has understandably received significant positive media coverage both nationally and internationally.

However there are also reasons for concerns.

These start from the protesters’ central demand to hang Abdul Quader Mollah, a senior leader of the Jamaat-e-Islami recently sentenced to life imprisonment following conviction for five offences involving crimes against humanity, as well as nine other leaders of the party who are being prosecuted for similar offences.

This demand is however being made with little consideration to the fairness of the trials which are taking place in two locally established courts called the International Crimes Tribunals.

Three aspects of Mollah’s trial

Late last year, the Economist magazine published excerpts from the hacked Skype conversations and e-mails between the chairman of one of the two tribunals and an expatriate Bangladesh lawyer, who was working closely with the prosecution. The excerpts showed that this particular judge was in close contact with the prosecutors. Drafts of court orders were being passed between the judge, the prosecutors and this Bangladesh lawyer — including one relating to the proposed actual judgment on one of the accused.

The judge, Mohammed Nizamul Huq resigned. A new court was constituted, but applications by the defence to seek retrials were rejected — on the basis that since the conversations and e-mails were illegally obtained, the court would not take any cognisance of it.

Although Mollah was dealt with by a court that was not contaminated by these underhand dealings, those calling for his hanging fail to recognise three aspects of his trial.

First, while the court found the evidence sufficiently credible to convict Mollah for complicity in mass murder (involving a village of over 300 people) and rape, the evidence was nonetheless far from overwhelming, as anyone who has followed the trial and read the verdict will know. Excluding the testimony of two investigation officers, the court depended on only eight witnesses to convict him on five counts — each of which involve offences alleged to have taken place at different locations and dates.

In three of these counts, the only evidence was hearsay testimony, with most of it coming from witnesses who could not attribute their knowledge to anyone in particular. Another count, concerning rape and murder, was based wholly on the testimony of a woman who was 13 years old at the time, hiding under a bed, where there was no additional corroborating evidence.

The second issue concerns the decision of the tribunal to only allow the defence to call six witnesses (when there was no limitation on the prosecution) simply on the basis that it thought this was a sufficient number. This would seem to be a significant restriction on the rights of the accused to present their case.

The third issue is of the extent of Mollah’s participation in the crimes, an important determinant of sentencing. While there is some lack of clarity in the tribunal’s exact findings, it appears that in none of the five counts was Mollah convicted of personally undertaking or ordering the acts of murder or rape. He was found guilty of “complicity” in or “abetting” an offence, “accompany[ing] the gang to the crime site having rifle in hand” or facilitating mass murder and rape by being “present” at the scene.

While these findings are undoubtedly extremely serious, it is notable that they are less serious than the findings by the same court a couple of weeks earlier in the (in absentia trial) of Abul Kalam Azad, sentenced to hanging for “physically participat[ing]” in the offence of genocide and other offences.

These three factors, along with the wider concerns about the fairness of the tribunal process, should at the very least raise serious questions about the legitimacy of demanding a death penalty for Mollah.

Case for no release

Reasons for not supporting the hanging of Delawar Hossain Sayedee, whose death penalty sentence on Thursday was greeted to huge cheers at Shahbag (and the unleashing of unacceptable violence by the Jamaat) are even more acute.

The demands coming from Shahbag show little interest in the subtleties of due process or matters of evidence. The protesters seem convinced that all the men currently before the tribunal are guilty, that any evidential weaknesses evidence are simply due to the long 40 years they have waited for justice, and that if the men do not get the death penalty, they will be released by a future sympathetic government.

It is certainly true that a 40-year-interval makes obtaining credible evidence of guilt that much more difficult. I know that since I made War Crimes Files , the 1995 Channel Four documentary about three men alleged to have committed 1971 war crimes, a number of important eyewitnesses in the film have died. However, at the end of the day, and unfair though it may appear, rule of law and due process means that only evidence shown to be probative and presented in court can be considered.

And while there is a risk that conviction for life may, due to political accommodations, result in future inappropriate release from prison, this should not be a justification for putting someone to death. Instead it should result in placing pressure on all political parties and any future government not to release those convicted of these offences. The men currently before the tribunal may well be guilty of the offences for which they have been charged. Jamaat-e-Islami did collaborate with the Pakistan military and atrocities were committed in which some its leaders are likely to have been involved. But a fair process of justice is crucial to determining whether this is the case — and certainly before putting men to death. This is all the more important now that 40 years have passed.

There is much in the Shahbag protests to support. But demands for hanging these men following a rather blemished tribunal process would well be a serious blot on these wider aspirations.

(David Bergman,a journalist with The New Age newspaper in Dhaka, manages www.bangladeshwarcrimes.blogspot

.com/ )

Instead of the death penalty, the protesters at Shahbag should be demanding fair trials for those accused of war crimes in 1971

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