This article appeared on The Platform on 31st March 2012 and was written by Mahin Khan. 

Last Monday, 26^th March 2012, marked the 41^st anniversary of the Bangladesh’s declaration of independence from Pakistan in 1971. The country’s Prime Minister, Sheikh Hasina of the ruling Awami League (AL), publicly celebrated the nation’s most anticipated anniversary in Dhaka withmuch fanfare. Meanwhile, on the other side of the world in Washington DC, the prestigious National Press Club invited Dr Mohammad Nakibur Rahman, the son of the incarcerated Bangladeshi opposition leader, Matiur Rahman Nizami, and International Criminal Lawyer representing the opposition, Toby Cadman, to discuss one of the less savoury manifestations of the war memory today—the controversial International Crimes Tribunal (ICT) of Bangladesh.

On the pretext of war crimes allegations, the AL government in Bangladesh has rounded up the leadership of the most significant opposition parties, detaining them in a manner that has been characterized by the UN’s Working Group on Arbitrary Dententions as arbitrary and in breach of international law. These opposition leaders face the death penalty if found guilty by the ICT. Between growing criticism from proponents at the shortfalls and incompetence of the prosecution to ever increasing opposition from the international community at the questionable legal framework of the ICT and political opposition at the partisan bias it displays, the tribunal has come under mounting pressure. The way the Bangladeshi government has been conducting itself and the ICT over the past two years since its establishment has caused concern from all sides that justice will not be done.

Opposition leader’s son speaks out

The Washington press conference Dr Rahman expressed his grave concern that his father’s life was in danger as consequence of the persecution he is being subject to and the tribunal’s seeking the death penalty for those accused. He then proceeded to describe his father, as he has known him, as singularly humble, of gentle temperament and kind-hearted, stating that he had seen his father spend “sleepless nights worrying about other peoples’ welfare.”

Rahman noted that before 2008, there had never been any charge of illegal activity against his father, and that his exemplary public record had been impeccable. This changed with the ascent of the AL to government in 2008. The opposition leader suddenly began to be accused by the government of blasphemy, sedition, and finally, war crimes, all for reasons of “government vengeance”. Eventually, his 70 year old father was arrested, detained indefinitely, and subjected to torture. Rahman’s family have not been spared persecution either—he states that his mother and sister are routinely harassed when visiting his father, forced to wait long hours, and at times denied visitation altogether. His youngest brother, a 22 year old studying abroad, was denied the renewal of his Bangladeshi passport to return home by the regime and remains “stateless,” stranded abroad for several months. Rahman closed his remarks by asking people to seek out the truth about 1971 based on facts beyond the hearsay based propaganda currently in vogue.

Toby Cadman, an international criminal lawyer specialised in war crimes, was the second presenterat the conference. He began by noting that he would have liked to give this press conference in Bangladesh on this momentous day, but that he is no longer welcome there. On his last visit, he was refused entry on the order of the Home Minister, held at the airport for ten hours, and then unceremoniously thrown out of the country. Cadman stated that a number of allegations had been made against him, including attempting to enter Bangladesh unlawfully and mounting an international conspiracy to undermine the tribunal, all of which are false. As a senior international lawyer with a decade of experience in war crimes tribunals, he asserted that a fair tribunal is absolutely essential to address the crimes that were committed during the Bangladesh independence war, and should have been held forty years ago.

According to Cadman, however, the current tribunal falls far short of international standards of fairness and justice, despite claims to the contrary by senior Bangladeshi politicians and the Prime Minister herself. He pointed out that many prominent voices criticize the tribunal, including:Amnesty International, Human Rights Watch, The UN Ambassador-at-large for War Crimes, Stephen Rapp, International Center for Transitional Justice, the International Bar Association,members of the House of Lords in the UK, members of Congress and the House of Representatives. Cadman added, “So, if I’m at the head of an international conspiracy, these are my co-conspirators, and the conspiracy is to ensure that our clients…receive a fair trial according to international standards.”

“an extraordinary tribunal that sits outside of the law”

Cadman was careful not to downplay the genuine enormity of the conflict of 1971, which is the premise of these trials—he suggested that the conflict could be considered one of the worst of its kind in modern history in that part of the world. This means, he added, that the process must be properly adjudicated, yet this is not currently the case. Cadman enumerated a long list of flaws in the legal process, including the fact that, in line with a constitutional amendment, those being tried by the tribunal are not eligible for fundamental universal human rights. Given these flaws, Cadman characterized the ICT as an “extraordinary tribunal that sits outside of the law.” The laws governing the present day tribunal were originally established for a military tribunal that was established in 1973, and Cadman noted that they need to be fundamentally reconfigured for the purposes of a civilian tribunal. Given that the death penalty is being sought, and that those targeted are all opposition political leaders, Cadman emphasized that the process had to be beyond reproach. As the tribunal stands, however, he feels this is far from the case.

In response to an audience question, Cadman admitted that it was indeed very difficult to consider the facts and not say this is a very politicized process, acknowledging that the political opposition and only one side of the conflict is being targeted. He added that the tribunal was established in March 2010, and about four months later the first arrests were made, commenting this was “probably the promptest investigations in war crimes history,” and thereby suggesting that the government already knew its targets, and so impartial investigations were not undertaken. Cadman’s hope, however, is that the Bangladesh government will hear the appeals that he and the international community are making to ensure that the process is made more fair.

The conference made clear the undoubtedly essential and belated nature of the ICT in the aftermath of what may be the most brutal event in South Asia’s modern history. However, it is clear the ICT cannot fulfill its purpose following its current approach. For those concerned about the future of Bangladesh, given the present path it pursues, to raise awareness in the international community about the shortcomings of this tribunal is essential to ensuring a trial that achieves the justice and catharsis it claims to seek rather than the division and conflict it continues to cause. Without significant international pressure, it seems unwise to expect anything like a fair process that is in keeping with international standards.