death in dhaka

8/13/2019 Death in Dhaka

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Death

Dhaka

!"

John Cammeghexamines how the Bangladesh InternationalCrimes Tribunal failed a nation

media reportage. Rare eyewitness accounts have been largely

discredited: in Sayedee two leading prosecution witnesses,

exposed as Awami League activists who had interfered with

the investigation, wildly contradicted earlier statements. As

the trials failings became public, further witnesses refused

to testify, causing the prosecution to invoke an elastic ICTA

provision allowing for statements to be read into evidence

where witness attendance cannot be procured without anamount of delaywhich the tribunal considers unreasonable

(s19(2)). The tribunal duly admittedfifteenwitness statements-

each going to charges hitherto unsupported by evidence .

But the witnesses had been present all along: a copy of the

prosecutions Safe Home register leaked to the defence showed

each had been in protective custody during the trial. When the

Tribunal refused to exhibit the register, one of the fifteen duly

testified for the defence, confirming he had refused to act as a

prosecution witness because his statement had been fabricated.

Another of the fifteen, Shukhoronjon Bali, chose to testify for

the defence regarding Sayedees alleged role in a notorious

murder: on arrival at court he was abducted by state militia and

vanished. Defence pleas to Mr Justice Nizamul Huq, chairman

of International Crimes Tribunal One (ICT1), for assistance werepredictably rejected: in 1992 Huq had played an instrumental

role in the Peoples Court, a public mock trial culminating

in death sentences for many of the ICT accused, including

Sayedee. ICT1 rejected a defence petition for Huqs recusal and

attempted to silence the 9 Bedford Row team by complaining

unsuccessfully to the Bar Standards Board.

When originally constituted in 2011, ICT1 comprised Justices

Fazle Kabir and Zakir Ahmed as well as Nizamul Huq. After

further arrests in 2011, and four months into the Sayedee trial,

Kabir was transferred into ICT2 to preside over the trials of

other Jamaat figures. His replacement judge in Sayedeeheard

just one witness before the prosecution closed their case. When

the moderate Zakir Ahmed unexpectedly resigned citing healthreasons (according to the Law Ministry) in August 2012, his

replacement in ICT1 heard only part of Sayedees defence case,

leaving the chairman, Nizamul Huq, as the only remaining

judge to have started trial. But in December Huq too was gone,

humiliated by a scandal that exposed government interference

There is a sense of foreboding in Bangladesh: in

January the country will go to the polls amidst

rising civil disorder. The government is nervous: a

series of crackdowns on opposition groups, crippling

strikes and industrial tragedies, epitomizing the traditional

disregard of workers rights and safety, mean the opposition

Bangladesh National Party (BNP) is likely to regain power. In

fact no incumbent government has ever been returned to powerin Bangladesh, where short term score settling has always

triumphed over consensual change.

In 2009 Prime Minister Sheikh Hasinas Awami League

swept to victory pledging to try the war criminals of the 1971

Liberation War. But whereas modern tribunals have actively

promoted reconciliation and the rule of law, Bangladeshs

International Crimes Tribunal (ICT) remains a political

gimmick, legitimized by an outmoded statute (International

Crimes Tribunals Act 1973 [ICTA]). Rights of the accused are

ignored while prosecutorial abuses are tolerated; investigators,

prosecutors and judges are government-appointed, there is no

right to interlocutory appeal, no right to privileged communication

with the accused, insufficient time to prepare a defence, and,

remarkably, no definition of crimes (seeJustice Without Politics?by John Cammegh, Counsel, February 2012).

With up to three million victims 1971 saw one of the most

brutal conflicts in world history. Albeit forty years on, properly

conducted trials might have achieved great things. But there is

surely no point in seeking justice unless it is fairly applied:thegovernments relentless pursuit of leaders of Bangladeshs largest

Muslim party, Jamaat e Islami, resembles a Stalinist purge. The

ICT has polarized rather than united the nation, reigniting chaos

that has left hundreds dead since it opened in 2011. With Jamaat

recently banned from contesting it the election is likely to be

violent.

The Sayedee Case: Skypegate and the strangedisappearance of Shukhoronjon Bali

Since the government barred the 9 Bedford Row team from

Bangladesh in 2011 we have advised defence teams from

London. Since ICTA specifically dispenses with rules of evidence,

prosecutions have largely relied on spurious hearsay and bogus


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and destroyed the ICTs international reputation.

In December 2012 theEconomist received

a series of leaked emails and Skype recordings

involving Nizamul Huq and a Brussels-based

Bangladeshi lawyer, Dr Ahmed Ziauddin, selfstyled Director for Bangladesh Genocide Studies

who had provided expert evidence for the

prosecution in Sayedee. TheEconomist revealed

that Ziauddin, apparently acting on behalf of the

Law Ministry, had urged Huq to speed up the

trials of Sayedeeand JamaatsAmir, Professor

Ghulam Azam, with promises of swift promotion

to the Supreme Courts Appellate Division. It also

suggested that rather than resigning through

ill health Zakir Ahmed had been removed at

the behest of Law Minister Shafiq Ahmed: in

an interview published immediately after the

Economists expose Zakir appeared to confirm

this.In light of this ICT1s chairman, Nizamul Huq,

resigned at once. The Tribunal vainly summoned

Economistjournalists, citing contempt. Both

Shafiq Ahmed and the prosecutor promised that

Sayedee andAzam, as well as those cases now underway in ICT2,

would be unaffected. This was remarkable, not simply because

Skypegate had fatally damaged the Tribunals legitimacy, but

because ICTA usually such a convenient prosecutorial tool fails

to address the situation whereby not a single judge remains on the

bench throughout a trial.

In desperation, the government transferred Fazle Kabir back to

ICT1 as chairman to keep Sayedee andAzam on the rails. Defence

petitions for retrial were rejected, as was Human Rights Watchsdemand for an independent judicial inquiry as these cases each

carrying the death penalty continued unabated despite no

judge having heard all the evidence. In February 2013 Sayedee

was convicted and sentenced to death, the Tribunal having

earlier rejected a defence application to exhibit a video in which

Shukhoronjon Bali confirmed that the statement he had supposedly

given to the prosecution alleging Sayedees role in murder had been

concocted. Professor Azam, now aged 90, fared little better: after

a prosecution case that failed to link a single death to his wartime

activities, and a defence case that suffered witness intimidation and

arrest by state police, he was sentenced to 90 years imprisonment.

Apparently the Tribunal felt this was lenient.

The Mollah Case: an illegal execution

Meanwhile, the various judges in ICT2 swiftly disposed of the

cases ofMollah, Kamaruzzaman andMujahid: each alleging

crimes against humanity, each reliant on far-fetched hearsay

reported by flaky witnesses, many of whom were shown to

be beneficiaries of the current regime. In the aftermath of

Skypegate the bench had become impatient: disgracefully, after

prosecution cases that had taken months, the defence in each

trial was allowed to call fewer witnesses (six, four and three

respectively) than there were charges on each indictment.

When he was convicted in February 2013 Mollahs reaction

to avoiding the death penalty he flashed a V for Victory sign

at the press outside court provoked demonstrations up to

500,000 strong demanding his execution: swift to capitalize onthe spontaneous outpouring of sentiment of the people, Hasina

cynically amended the law, allowing the prosecution to appeal

retrospectively for the imposition of the death penalty a measure

clearly prohibited by customary international law. To restrict the

defence even further, the time limit for filing complex appeal

pleadings was halved to 30 days. In such a febrile atmosphere it

was no surprise when, in September, the Supreme Court Appellate

Division freshly swelled by government appointees overruled

ICT2 and decreed that Mollah be executed along with Sayedee,

Kamaruzzaman and Mujahid, who had been convicted for crimes

against humanity and sentenced to death earlier in the year.

Each judgment was a work of flawed reasoning based on feeble

evidence barely rising above idle gossip, the perils of which were

neatly illustrated by subsequent revelations concerning one of

Mollahs star witnesses.One of the gravest allegations against Mollah was that he and

others had broken into a house containing four young girls and

their parents, all of whom were murdered except one of the girls,

Momena Begum. Defence enquiries later revealed that when she

told her story to a historian at Dhakas Liberation War Museum

in 2007 Begum stated that she had not been present during the

incident. In her 2010 witness statement she changed her story,

apparently telling the ICT investigator that she had been present

after all, and that the assailants were Pakistani soldiers.

Crucially, this account again made no reference to the accused.

In oral evidence, Begums account was inconsistent with

bothprevious statements. She described witnessing her fathers

abduction and the murder of her mother and sisters (one of whom

she alleged was raped) as she hid under the bed and for the firsttime stated that Mollah had been present albeit she based this

allegation on unattributed hearsay.

ICT2s bench neglected to mention Begums 2010 statement in

itsMollahjudgment; earlier they had refused to admit her 2007

account into evidence on the basis that the document tendered

by defence counsel was a photocopy of the original. This ruling

was somewhat disingenuous given the benchs previous rejection

of a defence application to exhibit the museums documents.

When the defence sought Begums recall in order to challenge

her on the 2010 statement the bench refused that too, ruling this

was a tactic to cause unreasonable delay. Perhaps an underlying

sense of guilt prevented ICT2 from passing the death sentence

after convicting Mollah on Begums evidence: but with the PrimeMinisters populist intervention the Supreme Court ruled he must

hang anyway.

The strange reappearance of Shukhoronjon Bali

As civ il disorder intensified, no single event provoked such

Abdul Quader Molla, 64, the fourth-highest ranked leader of the Jamaat-e-Islami party, gestures at the central jail inDhaka on February 5, 2013.

suggested that rather than resigning throughill health Zakir Ahmed had been removed atthe behest of Law Minister Shafiq Ahmed: inan interview published immediately after thes expose Zakir appeared to confirmIn light of this ICT1s chairman Nizamul Huqresigned at once. The Tribunal vainly summonedjournalists citing contempt. BothShafiq Ahmed and the prosecutor promised thatas well as those cases now underway in ICT2 pleadings was halved to 30 days. In such a febrile atmosphere itwas no surprise when in September the Supreme Court Appellate

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intense bloodshed as when Sayedee, Jamaats leading cleric, was

sentenced to death in February 2013. By May, the death toll had

been put at 150, with over 2000 injured. Condemning the violent

crackdown Human Rights Watch reported that security forces

used rubber bullets and live ammunition improperly or withoutjustification, killing some protesters in chaotic scenes, and

executing others in cold blood.

Small comfort, then, that in May Shukhuronjon Bali was

unexpectedly tracked down to a Kolkata prison having been

arrested and detained by Indian frontier guards. According to an

independent Bangladeshi newspaper,New Age,Bali claimed that

after his abduction he was held in solitary confinement in a Dhaka

police station before being blindfolded, driven away and dumped

at the Indian border. When asked byNew Ageto comment Dhaka

police denied all knowledge. Suffice to say, calls from Human

Rights Watch and others for an independent investigation into

the abduction of a witness intending to testify as to the falsity of

a statement allegedly made by him that directly led to Sayedees

conviction and death sentence were ignored. At the time ofwriting, Balis whereabouts is unknown.

Death penalty in absentia: Chowdhury Mueen Uddin

Early in 2013 the prosecution widened the net by charging

Chowdhury Mueen Uddin with his alleged role on the dreadful

night of 15 December 1971 when, just hours before their

surrender to the intervening Indian army, the anti-liberation Al

Badr death squads abducted and murdered thousands of Dhakas

intellectual and professional classes. Alleged to be both an Al

Badr commander and a prominent member of Jamaat E Islamis

student wing, Mueen was tried for mass murder as crime against

humanity. He was swiftly convicted on 4 November 2013 and

sentenced to death. But this case was different: Mueen is a joint

UK/Bangladesh citizen who has lived and worked in London for

decades. Keen to avoid political embarrassment, the Bangladeshgovernment chose not to apply for Mueens extradition and

he was tried in absentia.Apparently he was represented by a

government-appointed lawyer; apparently the lawyer didnt try

too hard. The case has been widely condemned in the UK and

elsewhere: whilst formal dissent by members of the House of

Lords led by Lord Carlile hasnt been formally endorsed by the

UK government, the fall-out from this case has hardly improved

the reputation of either the ICT or the Bangladesh government.

Today, despite international condemnation, the Awami League

promise more trials. Prime Minister Hasina is trapped now: she

cant afford to alienate hardline supporters by softening her

position, but holding course makes widespread violence inevitable,

not to mention the gathering storm of Islamic extremism should the

executions go ahead. Ironically, an election defeat by the BNP, whichhas promised to fundamentally review both the ICT and its tainted

judgments, may prove to be her saviour. Otherwise, she might find

that the monster she created may soon turn on its maker.

John Cammegh, 9 Bedford Row

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