The Bangladeshi government should halt the imminent executions of two men convicted of war crimes, Human Rights Watch said Thursday. The authorities should immediately suspend the death sentences of Ali Ahsan Mohammed Mujahid of the Jamaat-e-Islam Party and Salahuddin Qader Chowdhury of the Bangladesh National Party pending an independent and impartial review of their cases.
On November 18, 2015, the Bangladesh Supreme Court rejected review petitions by Mujahid and Chowdhury despite serious fair trial concerns surrounding their convictions. Both men were convicted of alleged war crimes during the 1971 Bangladesh war of independence in trials before the International Crimes Tribunal (ICT).
“Justice and accountability for the terrible crimes committed during Bangladesh’s 1971 war of independence are crucial, but trials need to meet international fair trial standards,” said Brad Adams, Asia director. “Unfair trials can’t provide real justice, especially when the death penalty is imposed.”
The death sentences against Mujahid and Chowdhury follow a disturbing pattern from previous ICT cases. In December 2013, Abdul Qader Mollah was hanged following hastily enacted retrospective legislation prohibited by international law. Another accused, Delwar Hossain Sayedee, was convicted despite credible allegations of the abduction by government forces of a key defense witness from the grounds of the courthouse, with the ICT refusing to order an independent investigation into the charge. Mohammed Kamaruzzaman was hanged in April 2015 even though witnesses and documents were arbitrarily limited by the courts and inconsistent prior and subsequent statements of prosecution witnesses were not allowed into evidence.
The trials of both Mujahid and Chowdhury have been marred by similar complaints, with arbitrary limitations on witnesses and documents. Mujahid’s lawyers submitted 1500 names of defense witnesses. The court acted reasonably in refusing to consider all 1500, but acted unreasonably by ordering that only 3 witnesses could testify for the defense. The court did not identify the most relevant witnesses; instead, it chose this number arbitrarily. Mujahid was sentenced to death for instigating his subordinates to commit abuses, although no subordinates testified or were identified. Shortly before the hearing on the review petition, one of his lawyers had to go into hiding following a raid on his house and the arrest of another defense counsel in a related case.
In Chowdhury’s case, the court refused to accept any testimony from his alibi witnesses while still demanding that Chowdhury prove that his alibi was valid beyond a reasonable doubt. Despite allowing the prosecution to call 41 witnesses, the ICT limited Chowdhury’s defense to 4 witnesses.The authorities reportedly ordered international airlines flying into Dhaka to declare whether any of Chowdhury’s defense witnesses were booked on their flights ahead of Chowdhury’s review hearing, presumably with an eye to denying them entry on arrival.
The International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a party, affords the accused the right “to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.”
“Treating the prosecution and defense equally is a basic fair trial principle, but the ICT has routinely ignored that principle in its seeming eagerness to convict the accused,” Adams said. “The accused in all these cases were allowed a minuscule fraction of witnesses, counsel were regularly harassed and persecuted, defense witnesses faced physical threats, and witnesses were denied visas to enter the country to testify.”
Government assurances that it would adopt recommendations from the US government, Human Rights Watch, and others to improve the proceedings and amend the law have yet to be fulfilled. Stephen Rapp, the former US ambassador for war crimes, who has long advised the government to make changes to ensure fair trials, spoke out this week on the miscarriage of justice in the cases of Mujahid and Chowdhury:
“Throughout my engagement, my first interest has been to achieve justice for the victims and survivors through trials and appeals that would establish the undisputable truth and hold the major surviving perpetrators to account. For such a process to stand the test of time, I urged that the judicial proceedings of the International Crimes Tribunal respect the highest legal standards. It saddens me to say that I do not believe that was done in the cases of Salauddin Qader Chowdhury and Ahsan Mohammad Mujahid. Under the provisions of international law that Bangladesh has bound itself to uphold, the imposition of sentences of death in these cases is not justified …”
Trials before the ICT, including those of Mujahid and Chowdhury, have been replete with violations of the right to a fair trial. The ICT has fundamental flaws because of article 47(A) of the constitution, which states, “This Article further denies any accused under the ICT Act from moving the Supreme Court for any remedies under the Constitution, including any challenges as to the unconstitutionality of Article 47(A).”
The article specifically strips people accused of war crimes of certain fundamental rights, including the right to an expeditious trial by an independent and impartial tribunal, and the right to move the courts to enforce their fundamental rights. This article has permitted the ICT overly broad discretion to deny those accused in this and prior cases the rights and procedures accorded to other defendants.
Many of the trials before the ICT have been marred by evidence from intercepted communications between the prosecution and the judges that has revealed prohibited and biased communications. The ICT’s response on several occasions to those who have raised objections about the trials has been to file contempt charges against them in an apparent attempt to silence criticism rather than to answer substantively or to rectify any errors. Human Rights Watch, the journalist David Bergman, and staff members of The Economist magazine have all been tried for contempt for publishing articles critical of the trials.
Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty. Bangladesh should join with the many countries already committed to the United Nations General Assembly’s December 18, 2007 resolution calling for a moratorium on executions and a move by UN member countries toward abolition of the death penalty.
The UN Human Rights Committee, which interprets the ICCPR, has said that “in cases of trials leading to the imposition of the death penalty, scrupulous respect of the guarantees of fair trial is particularly important” and that any death penalty imposed after an unfair trial would be a violation of the right to a fair trial.
“Bangladeshis are rightly demanding justice for the atrocities in the liberation war,” Adams said. “But delivering justice requires fairness and adherence to the highest standards, particularly when a life is at stake.”