Just over ten years ago, under existing 1973 legislation, the Awami League government set up the International Crimes Tribunal to hold trials of those Bangladeshis alleged to have committed Crimes against Humanity and other international crimes during the country’s 1971 war of independence.
The accused were primarily Jamaat-e-Islami leaders, alleged to have either been part of, or to have led, paramilitary groups like the Al-Badr in support of the Pakistani military. The trials which started in 2011, resulted in the execution of 8 men and the conviction of many others whose death sentences remain under appeal.
It is unclear how Bangladesh in 2024 views these trials, but at the time they were popular. A Nielson opinion poll of 2,510 people in April 2013 – which took place following the sentencing to death of two Jamaat-e-Islami leaders– found that 86 per cent of these who knew about the trials stated that they personally wanted them to proceed. That is a very high percentage and suggests that there was a deep popularity in the country for holding to account those who committed crimes during the 1971 war, particularly when these very same men had subsequently managed to rise to political leadership within the post-war resurgent Jamaat-e-Islami.
The problem with these trials of course is that despite their popularity they were deeply flawed.
They were highly politicised and manipulated, involving at its worst, the state abduction of a defence witness from in front of the court about which, it should be noted, the Tribunal judges showed no concern.
Interestingly the same poll which had found such a high level of support for the continuation of the trials, also found that twice as many people thought the trials were “unfair” rather than “fair” (63% - 31%). However, the dominant media and civil society narrative at the time turned a blind eye to fairness issues and the evident political manipulation of the trials.
It is this background which now frames the new trials that the country is now embarking on at the same International Crimes Tribunal, this time, relating to the killings that took place much more recently between 16 July and 5 August 2024 in which it will be leaders of the former governing Awami League, and its senior law enforcement officers,in the dock. On Monday, over 20 accused people will be brought before the Tribunal judges for the first time, with the prosecution seeking their remand in custody.
Considering the hundreds of deaths of protesters at the hands of law enforcement authorities in this three-week period, there is no doubt that the holding of these trials will be as popular as they were ten years ago. It remains an open question, however, how much fairer they will be.
One cause of concern is the similarities in the political environment surrounding the tribunals ten years back and now. In 2011 it was assumed by just about all key opinion-formers at that time, as well as the dominant political groupings and actors, that the men accused of crimes during the 1971 war were guilty. And in 2024, that same environment exists in relation to the new accused. Indeed because people are so recently bereaved and seriously injured, it is very likely that emotions are now (understandably) far more heightened and there is a greater desire for retribution.
Just as it was a decade ago, this is a very difficult context to have a fair trial process, when everyone expects a guilty verdict, making it hard for judges to acquit.
One key advantage that prosecutors have now, compared to the previous ICT trials, that might mitigate the need by those involved in the Tribunal to bias the process against the accused, is the extent of evidence about the killing as well as about the political context in which it took place.
Mobile phones were not around when the 1971 killings took place – and, with very few relevant eye-witness written accounts available, the prosecutors had to primarily rely on peoples’ decades old memories of events. This almost certainly resulted in the prosecution having to make up some of the evidence against the accused, and the Tribunal giving undue significance on the evidence it had. Whilst serious crimes were undoubtedly committed during the 1971 war, and the role of the Jamaat-e-Islami in support of the Pakistani military was well known, the lack of available credible evidence concerning events 40 years earlier, meant that it was never going to be straightforward to prove “beyond a reasonable doubt’ that individuals had committed crimes. It was, arguably because of this very reason, that the Tribunal along with the then government, had to significantly manipulate the process to get the convictions they wanted.
The situation now could not be more different in terms of the available evidence of the killings that that will be at the heart of the new trials. Apart from the fact that so many people continue to have very vivid memories of people being gunned down in front of their eyes by law enforcement authorities, many of the hundreds of the killings were filmed on mobile phones. Whilst much still depends on how well the authorities collect the evidence, significant verifiable evidence of the actual killings – and often of the people doing the actual shooting –will be available.
However, although one should not minimise the significance of this advantage, it is the offence of Crimes against Humanity that police chiefs and Awami League leaders will be prosecuted for – and this is far from being a straightforward crime to prove with several different technical elements. In particular, the prosecution will have to show evidence of a linkage, through a chain of command, between the accused person and killings and also show that the killings were part of a “widespread or systematic attack directed against” a civilian population which is itself “in furtherance of a State or organizational policy” and which the accused knew about.
Obtaining credible evidence of a number of these elements in particular ofthe “linkage” and of the “state or organizational policy” will not be easy. It is not improbable that senior law enforcement authorities have destroyed a lot of written evidence and so the prosecution is likely to require some medium or high-level insiders to turn against their former political and law enforcement leaders and provide evidence on behalf of the prosecution. This will require a lot of deft negotiation.
The concern is that - because of the difficulty in proving this part of the case against the accused and in light of the surrounding heightened political environment which demands convictions - incentives similar to the ones that resulted in the previous ICT trials being so unfair could again play their role. If they do so, the credibility of the whole process will come tumbling down.
There is no doubt that this same political grouping will seek to attack the credibility of the International Crimes Tribunal. It is therefore essential that the new government – and the Tribunal - does not provide them any legitimate reasons to do so
The government needs to recognise that it is very much in its and the country’s interest that this does not happen. The level of international scrutiny on these new trials will be at a level not seen before in Bangladesh. The trials are likely to involve senior members of the previous Awami League government (including possibly the country’s most recent Prime Minister) who have strong international networks particularly in India who will fixate and likely embellish any errors or injustices coming out of the process. It is not unlikely that the accused will hire foreign counsel who will also seek to highlight any inappropriate conduct by the prosecution or the Judges.
Some decisions already made by the government do unfortunately raise some concerns. Instead of appointing a Chief Prosecutor with no previous relationship to the International Crimes Tribunal and without any political baggage, it appointed a man who was a senior defence lawyer to many of the Jamaat-e-Islami leaders convicted by the earlier tribunal and was also a leader of a political party which split from the Jamaat. Whilst, his appointment does not create any conflict of interest, and TajuI Islam isa smart lawyerwith experience in international criminal lawwho also contends he can act independently, the optics of the appointment are certainly not great. In addition, the appointment by the government of three judges, with limited recent judicial experience, one with a BNP-background, also does not create a great source of confidence in the process.
However, it will be decisions that the government are still yet to make on what amendments it will make to the International Crimes (Tribunal) Act 1973, and the extent to which they will align with international standards, which will help decide whether the mistakes of the past have been properly learnt.
There are certainly some positive signs that the government is willing to reflect in its amendments to the 1973 Act some key standards that exist in the Rome Statute that established the International Criminal Court in the Hague – but whether the changes to the law will go far enough remains uncertain.
The Tribunal’s Rules of Procedure also need to be updated – and quickly. Last month, the ICT issued arrest warrants against 46 people under rules that only require the prosecutor to show that arrest is “necessary for effective and proper investigation.” International standards require that prosecutors also provide evidence to judges that there are “reasonable grounds” or “grounded suspicion”, to believe that the person has committed a crime, before an accused person can be detained.
In recent months we have seen the most extraordinary disinformation campaign coming out of India and the pro-Awami League diaspora against the new Bangladesh government. There is no doubt that this same political grouping will seek to attack the credibility of the International Crimes Tribunal. It is therefore essential that the new government – and the Tribunal - does not provide them any legitimate reasons to do so.
The stakes could not be higher for the current government.
* David Bergman is a journalist who for many years has written on Bangladesh including on the previous ICT trials. He can be followed on Twitter @TheDavidBergman.