By Niccolo ’Figa’ Talamanca and Nicola Giovannini
The massive atrocities committed during the nine-month 1971 conflict, from which Bangladesh emerged as an independent State, still haunt the country and efforts to finally bring justice are essential for Bangladesh to moving forward without the heavy burden of a long-standing culture of impunity. The hundred of thousands of victims and survivors deserve that justice is done and seen to be done. As with any conflict, the senseless loss of life and human suffering was experienced on all sides. All those who suffered during the conflict have a right to see justice through an independent and impartial judicial process.
Even after four decades, the call for justice is shared not just by the victims of atrocities, but by the whole of Bangladesh, as a country. The establishment of an International Crimes Tribunal (ICT) was a key promise on the basis of which the BLA-led Grand Alliance received a strong popular mandate and Bangladesh’s commitment to justice was reaffirmed when it became the first South East Asian State Party to the International Criminal Court in 2010.
The ICT, which began its work in March 2010, has an historic mission to close this traumatic chapter and redress the historical burden of atrocities that has accompanied Bangladesh since its birth as a country. It can fulfil this mandate by bringing to justice those who ordered and committed wide-scale atrocities; providing acknowledgement and redress to countless victims; and creating an undeniable factual record of the events that reflects the real experiences of all affected communities.
The ICT’s obligation and responsibility is, therefore, not just to punish perpetrators who are proved guilty beyond a reasonable doubt, but to provide a fair process that is explained to victims and to the people of Bangladesh, so that they can understand and follow the proceedings and feel that justice is being done. Having expressly excluded any investigations of Pakistani Army officers, who are widely believed to bear the greatest responsibility for the crimes committed, and having focussed its investigations on the current leadership of opposition political parties for their role during the conflict, it is now up to the ICT to demonstrate its ability and willingness to conduct proceedings with fairness, impartiality and strict adherence to due process.
Should the ICT fail to be seen as applying the highest international standards in the enforcement of crimes under international law, even as a domestic tribunal, then it will have failed in its historic mission. Furthermore, such a failure would make it inevitable that a future government will negate all of the tribunal’s achievements and promote revisionist policies that will glorify perpetrators and vilify the victims. In particular, any application of the death penalty for individuals being tried by ICT will virtually guarantee that the process will be viewed by opponents and potential supporters alike as a clumsy attempt to exact political revenge on opposition leadership under the guise of fighting impunity.
The continued exclusion of due process guarantees enshrined in Constitution of Bangladesh as foreseen in the International Crimes (Tribunal) Act 1973 and its 2009 amendment brings discredit to the Tribunal. ICT supporters point out that the provision is needed to address retroactivity concerns (international human rights law specifically allows retroactive jurisdiction for crimes under international law). However, the ICT has since expressly declined application of Bangladesh due process norms in its proceedings, opening itself to further legitimate criticism not only by its opponents, but also by those who should by rights be its most prominent supporters in the international community.
Bangladesh’s failure to address the legitimate concerns of human rights organisations whose mandate is to fight impunity for war crimes, crimes against humanity and genocide, all of whom have voiced strong concerns about the application of due process by the ICT, reinforces the claims of those who are bent on rewriting history to negate the crimes. Even official rulings by United Nations bodies are being ignored: after more than one year, Bangladesh has still not responded to a formal ruling issued on 3 October 2011 by the United Nations Working Group on Arbitrary Detention that ICT pre-trial detention of one BNP and five JEI leaders is “arbitrary” and in breach of article 9 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights, to both of which Bangladesh is a party. The worst case scenario, whereby the ICT will have contributed to turning into heroes those it was meant to punish and will have demolished the chance for victims to have durable acknowledgement of their suffering, is already upon us.
To keep the promise of justice for the thousands of victims and their families that the ICT’s establishment represented, Bangladesh needs immediately and categorically to exclude the death penalty for individuals accused before the ICT and ensure that the trials are conducted in a fair and transparent manner. This means applying in full all due process guarantees, including protection of defence witnesses, potential witnesses and counsel from harassment and intimidation; full application of the presumption of innocence; and all other due process rights, to the highest international standards. As trials are ongoing, the ICT can still ensure that these standards are applied and that they are seen to be applied.
Abiding to these international fair trial standards is essential to ensure that the work of the ICT sustain the test of time and to prevent its proceedings from being easily dismissed by a future government as unjust, widely condemned, politically motivated judicial exercise of vengeance. Finally, prompt action from the international community is also needed. In particular, the UN Human Rights Council should activate its Special Procedures to conduct an urgent re-assessment of the ICT process, which will provide an opportunity for Bangladesh and the ICT to demonstrate its ability and willingness to conduct fair impartial and independent proceedings.
Niccolo’ Figa’-Talamanca is Secretary General of No Peace Without Justice (NPWJ), an international non‑profit organisation founded in 1993 to promote a more effective international criminal justice system for the prevention, deterrence and prosecution of war crimes, crimes against humanity and genocide. He has extensive field experience in human rights documentation and has led conflict mapping operations in various conflict and post-conflict countries. Email: [email protected] – Website: http://www.npwj.org
Nicola Giovannini is President of “Droit au Droit” (Right to Law), an international NGO committed to the promotion of human rights and rule of law in judicial and penal procedures. He is the author as well as translator of numerous books and articles on political and legal theory, as well as co-editor of “The Use of Solitary Confinement in European Prisons” (Bruylant, 2004). Email: [email protected]