Relatives of Jamaat-e-Islami leader Motiur Rahman Nizami visit him before his death sentence is executed at Dhaka Central Jail on May 10.(Photo: Zakir Hossain Chowdhury/AA)
On May 11, Bangladesh witnessed execution of fifth, and so far, the most high profile opposition politician convicted by a controversial tribunal for crimes committed during the country’s independence war.
Maulana Matiur Rahman Nizami, Leader of Bangladesh’s largest Islamic political party and a former Minister and law maker, was accused of leading a militia group which collaborated with the Pakistani army during the bloody conflict. He was charged with 16 counts of which he was acquitted in 8, and sentenced to death by hanging in four of them.
Bangladesh’s independence was a bloody affair. Whilst the number killed is contested and the narrative of crime only covers atrocities committed by one side, it is accepted by independent analysts that grave crimes were committed including all categories of international crimes.
Given the bloody birth and wounds created by mass killing, arson and rape – by both sides – it is only right and proper that there should be an effort to try those responsible for heinous crimes. Furthermore, Bangladeshis and others who have suffered during the conflict deserve closure which can only come through a proper and robust process of accountability and justice.
Unfortunately, the war crimes trial set up in 2010 is a domestically constituted trial which has little or no international involvement. It has come under severe criticisms from the UN, foreign governments and all major human rights organisations.
Human Rights Watch said it has “long supported justice and accountability for the horrific crimes committed during Bangladesh’s 1971 war. But this must be done through trials which meet international standards, particularly since the death penalty is at stake,” said Asia Director at Human Rights Watch, Brad Adams.
“Bangladesh owes the victims of 1971 a fair and proper accountability process.”
HRW adds that “many of the trials before the International Crimes Tribunal (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.”
The War Crimes Tribunal established by the Bangladesh Government has come under fire even before it began. The legal framework upon which it is based is flawed on at least two counts. First, it will only try those Bengalese who collaborated with the Pakistani army. Therefore, at least three other elements who may have been responsible for war crimes will not be investigated. They are the Pakistani army, the Indian Army and the pro-independent guerrilla fighters, ‘Mukti bahini’. Therefore, most of the main culprits will not be brought to justice and the process by default therefore will not offer closure.
The second legal flaw is the procedural flaws. The standard and burden of evidence acceptable under the rules of procedure significantly deviate from even Bangladesh’s domestic standards and fall significantly short of internationally accepted standards. These problems have been further compounded by the lack of expertise – almost no one involved in the process – the investigators, prosecutors, judges and lawyers – has any prior experience of trying war crimes.
However, the most alarming was the manner in which the Tribunal has conducted itself leading to allegation of bias and collusion. Two issues in respect of this stand out. Firstly, the tribunal has consistently interfered and severely restricted those accused in terms of number of witnesses they are able to produce in their defence. For example, Nizami was charged with 16 offences all potentially punishable by sentencing to death. These allegations arose from multiple incidents, factual basis and geographical locations over a period of time. Yet, he was restricted to only four witnesses in his defence.
The second aspect of conduct arises from the leaked conversation of former Chairman of the Tribunal, Nizamul Haque Nasim. His conversation with a Belgian based Bangladeshi lawyer Ahmed Ziauddin who previously campaigned for trying some of those accused appeared to suggest that the Tribunal was colluding with the Government, prosecution and campaigners to predetermine outcome and to execute all accused.
Nizami’s execution, like those before him, sadly therefore, created new wounds and raised many more questions. A weak civil society, the rise of lynch mob celebrated by many in the west as vanguard of liberalism and the absence of genuine scrutiny and accountability of the Bangladeshi Government will only go to further polarise, divide and destabilise a country already in the making of an authoritarian state.