The Sheikh Hasina trial: 'Justice' and a fair judicial process

Was justice served by convicting and sentencing Sheikh Hasina to death? From the moment cheers erupted in the courtroom after the death sentence for Sheikh Hasina was announced, it was evident that many family members of those killed during the protests — along with the injured, a wide circle of eyewitnesses and supporters of the student movement — believed that justice had indeed been served.

For them, Hasina’s guilt was not something to be established through a trial. They knew she was guilty long before proceedings began.

From 16 July 2024, for a three week period, students and others had been killed — arbitrarily and intentionally — in the streets of major cities by security forces, aided at times by ruling party activists who themselves fired on protesters. The organised nature of the lethal violence, much of it videoed, could only mean, in their view, that the orders originated, directly or indirectly, from the prime minister.

For the bereaved, the injured, the eyewitnesses, the protestors and their supporters, a trial was not a mechanism to determine Hasina’s innocence or guilt; it was a process through which her punishment would be delivered. And anything short of a death sentence would not, for them, have constituted “justice.”

This dynamic is not new. During 2013–2015, following the convictions of senior Jamaat-e-Islami leaders for international crimes committed during the 1971 War of Independence — many of whom were executed — similar scenes unfolded.

When Ghulam Azam, Matiur Rahman Nizami, and other Jamaat leaders were convicted, “pro-liberation” groups celebrated wildly. For them, these were men who had previously escaped accountability and risen to powerful positions despite allegations of involvement in Al-Badr, the paramilitary force drawn from Jamaat’s student wing and implicated in numerous atrocities.

Just as many now believe Sheikh Hasina’s guilt to be obvious, these “pro-liberation” supporters viewed the guilt of Jamaat leaders as equally beyond doubt. For them, the trials existed merely as instruments of deserved punishment.

Across both eras, the adequacy of trial procedures — beyond the existence of some basic legal form — was largely irrelevant to these constituencies. To raise questions about fairness or due process was to align oneself with the accused, supposedly helping them evade the “justice” they deserved.

This is not an article seeking to question the versions of justice that are popular now or were popular in 2013. It is about the need to separate - at least in Bangladesh - the language of “justice for victims” from the question of fair trials and due process.

And the failure to do so is reflected in the misguided language used by Amnesty International in its press release, relating to the conviction of Sheikh Hasina - in which it claimed to know what was “justice” for the “victims.”

The press release was titled: “Justice for victims of 2024 massacre not served by death sentence against Sheikh Hasina.”

But this is simply not accurate. The victims themselves overwhelmingly believe that justice was served.

Amnesty went onto say, “Justice for survivors and victims demands that fiercely independent and impartial proceedings, which meet international human rights standards are conducted.”

Again, this does not reflect the victims’ own position. They are not demanding such proceedings.

The press release added: “The victims of July 2024 deserve far better.”

But, again, this is not what the victims say.

And had Amnesty International claimed the same thing about the 2013 trials, they would have been equally incorrect.

None of this means that Amnesty International’s criticism of the trial process is wrong.

There is indeed a strong case to claim that there was a “lack of independence” at the court; that “the unprecedented speed of this trial in absentia and verdict raises significant fair trial concerns for a case of this scale and complexity.” That “the time” given to the court appointed defence lawyer to “prepare a defence was manifestly inadequate.” And that these “unfair trial indicators are compounded by reports that defence cross examination of evidence deemed to be contradictory was not allowed.”

These are serious issues. But they relate to fairness of process, not justice as perceived by victims. Amnesty conflated the two.

This conflation was not a mistake made by the United Nations. Ravina Shamdasani, the UN Human Rights office’s spokesperson, stated that the verdict against Hasina and others was “an important moment for victims of the grave violations committed during the suppression of protests last year.”

She then had this to say about standards. “We have consistently advocated for all accountability proceedings – especially on charges of international crimes – to unquestionably meet international standards of due process and fair trial” but adding that ““[W]e were not privy to the conduct of this trial …”

The UN could certainly be criticised for its failure not to have been “privy to the conduct of this trial” and for not being more critical of its due process standards etc, but it understood the importance of distinguishing victims perceptions of “justice” from “fair standards.”

The fairness question ultimately concerns what sort of country Bangladesh aspires to be — and how it wants its legal system to be perceived. Apparently, for the authorities, securing “justice for the victims” conflicted with holding a trial that observed full due process, or at least they perceived there could well be such a risk of a conflict. Faced with this tension, the government evidently prioritised the former.

There is a trade-off. Yes, the trials delivered a form of “justice” widely recognised within Bangladesh as a political gain for the government. But the lack of due process carries its own costs.

It will for example likely get, at the most, only tepid support from “the West” for these kind of proceedings; there is now no chance of obtaining international support for the extradition of Sheikh Hasina; arguments for those seeking to delegitimise the proceedings, especially within the Awami League camp, are strengthened; and the country’s reputation for undertaking unfair trials, even those involving international crimes, will continue.

Many will argue that this comparison is unfair, since the Hasina trial concerning the 2024 protests was conducted under updated legislation that contains more detailed and stringent offences than the earlier legal framework. Moreover, the evidence presented in court — including intercepted audio recordings, video footage, and the testimony of an approver — is considerably more robust than what was available in the earlier trials relating to 1971.

This is a fair point. However, both sets of trials still took place in a similarly highly politicised environments, and involved similarly inexperienced and, arguably, partisan set of judges. And, significantly, in relation to the optics of the Hasina trial, the procedure for the in absentia trial in 2024 had not been improved since the in absentia trial of 2013.

As a result, this trial will be subject to some of the same criticisms as earlier.

As further trials proceed, this perceived trade-off between “justice to the victims” and “fair trials” will play itself out at the heart of the government’s and the courts’ decision-making.

*David Bergman is a journalist. He has been writing about the ICT trial proceedings and Bangladesh for many years. He can be contacted on Facebook here: david.bergman.77377