Sheikh Hasina’s trial: Judicial process mustn’t be controversial

Several cases have already been filed against the deposed prime minister Sheikh Hasina who has left the country. Charges have also been filed against her at the nationally established International Crimes Tribunal. Law advisor Asif Nazrul has said the interim government has also decided to try the killings that took place during the student uprising, at the International Crimes Tribunal.

Asif Nazrul said, “The students’ organisations on the streets, human rights organisations and various sections of the people have asked whether all this cannot be tried as crimes against humanity. They have looked into matter and it has been seen that those involved in the killings, those who passed the orders and aided and abetted in various ways, can all be brought to trial.” (Prothom Alo, 14 August 2024)

Asif Nazrul also said, “Efforts are being made to carry out the investigations into these incidents under supervision of the United Nations. (BSS, 14 August 2024)

Meanwhile, the United Nations High Commissioner for Human Rights, Volker Turk, during a telephone conversation with the interim government's chief advisor Professor Dr. Muhammad Yunus, said that the UN would soon start investigations into the killing of demonstrators. (Prothom Alo, 14 August 2024)

There are two sides to these incidents. One is, investigation into the killings that took place in July-August and the other is, trial of Sheikh Hasina for crimes against humanity. Whether Hasina and the others will be charged with command responsibility, depends on the manner and scope of investigations. Advisor Asif Nazrul's statement is a bit confusing in this regard. The United National conducts investigations independently. The investigation that Volker Turk has spoken about is probably such an independent investigation.

Speaking to the concerned United Nations human rights official in Geneva on 14 August, I learnt that this would require an official request in writing and then the UN would want a commitment that and cooperation for which they requested, would be granted. What is particularly important here is that the request should not be made in a manner that the UN refuses. While such refusals are made on technical grounds, this will give scope to the supporters of the deposed government and that government's foreign supporters to avert that no such crimes took place.

The sooner the government places its request in this regard, the better. This is important for witnesses and evidence pertaining to the crimes.
It is required to keep in mind the context of the demand for Sheikh Hasina to be tried on charges of crimes against humanity.

Even before Sheikh Hasina resigned, there was talk out of the country about trying her for crimes against humanity. In that regard I had written on 9 August that Sheikh Hasina needed to be tried for the killings that took place in the days before the government was toppled. To that end, Bangladesh can request India to send Sheikh Hasina back to Bangladesh in keeping with the deal signed in 2016 between Bangladesh and India. Or, the international court can be approached for the trial of Sheikh Hasina. (Prothom Alo, 9 August 2024).

It is the responsibility of countries that are signatory of the Rome statute to bring to justice any person who commits crimes against humanity. Bangladesh is a signatory to the statute. If any country is reluctant or unable to try the person who has committed crimes against humanity, then any person or institution can approach the International Criminal Court (ICC) in this connection.

It will be apparent that a country is reluctant if it hesitates to take steps or fails to take steps to this end, if their neutrality is questionable or there is no independent monitoring in place. On the other hand, a country may decline if the judiciary of that country is so weak that it will not be able to carry out genuine justice. There are trials in the ICC for both these reasons.

My advice was that, taking the overall weakness of Bangladesh's judiciary into consideration, along with possible political repercussions, initiative should be taken to request ICC to start the trial procedure against the former prime minister Sheikh Hasina. After this statement, the leaders of the Students against Discrimination platform placed their demand to the interim government that a case be filed with ICC, naming Sheikh Hasina as the main accused.

It must be kept in mind that the Rome Statute did not only recognise killings as crimes against humanity. The crimes that are identified as crimes against humanity in Section 7 of the statute include torture and enforced disappearance.

From 2009 to 2023, at least 677 persons were victims of enforced disappearance. There is no accurate account of how many persons were tortured in "Aina Ghar". All of those involved in this can be tried for crimes against humanity and none of this, obviously, happened without the knowledge Sheikh Hasina.

So the inured persons can file charges against these persons of the deposed government and the government can file criminal cases too, but there is no obstacle to approach the International Criminal Court to take measures against them. Bangladesh's law ministry can discuss the matter of Sheikh Hasina with the office of the prosecutor. This will put pressure on India too, about how long they will offer shelter to Hasina.

The fact that the government is considering filing charges with Bangladesh International Crimes Tribunal indicates that they want to ensure justice. The UN will not be able to assist this tribunal which was formed under a law in 1973 (and later amended in 2009 and 2013) because this law has provision for death sentence. UN does not take part in any trial process that may end in a death sentence. A UN human rights official in Geneva reminded me of that.

Another important aspect is that the international human rights agencies from the very beginning have been objecting to procedural flaws in this tribunal. If this procedure is followed, the accused persons will use this criticism to obstruct the path of justice, even though they did not take all this into cognizance themselves. If amendments are brought about, it will still give off the feeling that this is motivated.

The government needs to take all this into consideration. As it is, already questions have arisen concerning certain legal procedures and the behaviour of the police. An example of this is the manner in which the former law minister Anisul Huq and the former prime minister's private industries and investment advisor Salman F Rahman were presented after arrested.

It is essential for the police and the court to practice caution in their behaviour. It would be wrong to project such behaviour that would overshadow the actual crimes of those persons. It must be kept in mind that the entire world is focussed on Bangladesh and most people are expecting the government formed through the mass apprising to behave in a legal manner. The country cannot be changed, after all, without establishing the rule of law.

One of the major responsibilities of this government is to bring the criminals against humanity under the purview of the law in a manner that one can say unhesitatingly that justice has been served. We owe this to the martyrs of this movement.    

* Ali Riaz is distinguished professor of the Department of Politics and Government at the Illinois State University in the US, nonresident senior fellow of the Atlantic Council, and president of the American Institute of Bangladesh Studies.

* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir