The recent death sentences awarded to Motiur Rahman Nizami, Ali Ahsan Mohammad Mujahid and Salahuddin Quader Chowdhury, the top leaders of the Bangladesh Nationalist Party (BNP) and Jamaat-e-Islami, have triggered mixed reactions within the country and the international community. The convicts have been awarded death sentences by the war crimes tribunal of Bangladesh on grounds of orchestrating mass killings, committing rape, genocide and other such war crimes that violate international human rights norms. The international community, which includes international human rights organisations, the UN, international lawyers and countries like Pakistan and the US have said that these executions are politically driven.

Bangladesh War Crime Tribunal

The Bangladesh liberation war fought in 1971 that claimed about three million lives necessitated the constitution of a tribunal in order to try the war criminals. Consequently, a tribunal was constituted in 1973, as per the International Crimes Tribunals Act (ICTA), 1973. The tribunal is empowered to try the people irrespective of their nationality if they committed any crime on the territory of Bangladesh. In 2012, another tribunal was setup under the act - the International Crimes Tribunal-2 - under which Bangladesh is currently carrying out a slew of executions of war criminals. Though these executions seem legitimate, doubts about its fairness have been expressed.

Bones of Contention

The prime reason attributed to the uproar about the execution is the nature of war crime trials undertaken by Bangladesh, as these trials do not adhere to international standards. The BNP has rebuked these trials for its arbitrary nature, calling the executions politically motivated with an aim to eliminate political rivalry. Looking at the trial trends, of the total eighteen who been convicted, four members with affiliations to the BNP and the Jamaat-e-Islami including Nizami have been sent to the gallows. These convicts are those who opposed the Bangladesh War of Independence. Though there is a need to punish the perpetrators, the expediency shown by the ruling party in undertaking these executions is disproportionate to the international standards of trials. Several opposition leaders in Bangladesh and human rights activists view the trials as having serious flaws. For instance, it is alleged by a Jamaat leader based abroad that Jamaat leaders inside Bangladesh were not giving interviews because their phones were tapped and their families were harassed if they spoke to media. 

 

International human rights organisations that include Amnesty International, the Human Rights Watch and the UN office of the High Commissioner for Human Rights have voiced their concerns against the trials. The international human rights and humanitarian law community have claimed that the rules lacked adequate protection for the defendants and witnesses, and the trials were politically motivated. 

 

Capital punishment involves adopting the most stringent safeguards, and guilt must be established beyond reasonable doubt. In the case of Bangladesh, it has projected unusual expediency in the matter. The witnesses, on vague grounds, were not allowed to testify evidence that could have exculpated the defendants. In addition to this, the rights of the accused have also been infringed upon. The accused have been arbitrarily detained without formal charges levelled and are allowed to challenge the detention. As the tribunal does not have an appellate chamber, the Supreme Court of Bangladesh has final say in the matter.

 

There are also instances of informal interrogation in the absence of the counsel, and the accused are also not allowed to have a conversation with them in private. There is no bail granted to the accused. It is important to note that release is a right and not privilege. The accused must be informed of his charges and trials must be conducted publically - Bangladesh has flouted these trial procedures. Further, there has been no investigation into claims of torture and abuse of individuals in detention.  There are also instances where the right to defence is denied: Salahuddin Qauder Chowdhury was allowed only 4 witnesses in his defence while the prosecution was allowed 41 witnesses. Additionally the tribunal does not provide for the protection for witnesses whose testimony could be of use to the accused. Any trial adhering to international standards is required to presume the accused to be innocent until proven guilty. However, in these cases, the burden of proof is shifted onto the accused.

Bangladesh’s Position 

Bangladesh has denied the allegations by the UN and other human rights organisations. It stated that the trials were in no means partisan and were of no political affiliation. It further asserts the right to frame its own law in the matter as the subject falls under domestic jurisdiction. The Bangladeshi population is equally divided on the issue. A section of the population who support the cause of Bangladesh and the Awami League view that justice has been delivered with the convicts being executed. On the contrary, the other section which supports the BNP and was opposed to the liberation war hail these convicts as martyrs. What is worrisome is that the means to address these issues are inadequate. The arbitrary executions in the garb of justice tarnish the very fabric of democracy in Bangladesh and create a milieu of insecurity. 

 

The international organisations that have expressed their reservations about these trials have not been able to do anything substantial. The UN has so far only admonished Bangladesh and asked it to refrain from awarding such arbitrary sentences. The UN office of the High Commissioner for Human Rights, Human Rights Watch, War Crimes Committee of the International Bar Association, and the International Center for Transitional Justice have all separately submitted, to the Bangladeshi government, letters of concern and recommendations regarding the trials. These state that the trials were unfair and ask Bangladesh to impose an immediate moratorium on the death penalty. While the government has not rejected such recommendations outright, it has not publicly responded to them either.

 

To sum up, in a convoluted scenario of this kind, it becomes difficult to arrive at a conclusion whether Sheikh Hasina's government is making an attempt towards reconciliation or is aiming towards revenge. It is important that all trials be carefully examined. As doubts regarding the competence of the tribunal persist, it could be plausible that the trials be conducted on an international level. For instance, the trials could be monitored by the UN with neutral staff and judges on the lines of the Residual Special Court of Sierra Leone set up by the UN in order to avoid political partiality. However, it is unlikely that Bangladesh would accede to such proceedings as it hinders its domestic jurisdiction.