Last week, an independent report into the proceedings of the International Crimes Tribunal (ICT) in Bangladesh was published. The comprehensive evidence-based report by Geoffrey Robertson QC is the first of its kind and concludes that the Tribunals proceedings fall seriously short of international standards.
Since its inception, the International Crimes Tribunal, which has passed a number of death sentences on opposition political leaders for crimes allegedly committed in the 1971 civil war in East Pakistan, has been the subject of significant criticism from both those who have appeared before it and numerous legal experts. All of whom have concluded that the ICT does not adhere to internationally recognised standards.
According to the 126-page report, the major concerns about the ICT are that the Tribunal lacks impartiality, it allows for the death penalty to be imposed without providing a higher standard of procedural safeguards, it permits trials in absentia and there are concerns about witness tampering and intimidation.
Further, the Tribunal appears to have no rules about admissibility of evidence: many of the convictions have been based on hearsay, and in effect, on guilt by association. The Tribunal does not provide the basic guarantees required by international human rights treaties; the rules about providing adequate time and facilities to prepare a defence have been consistently breached, and most notably, defendants are excluded from enjoying the constitutional protections available to all other Bangladeshi citizens.
During a press conference earlier today at Doughty Street Chambers in London, Geoffrey Robertson QC emphasised that the report does not make any findings on the guilt or innocence of the defendants, but instead it entirely concentrates on the procedures by which the defendants have been tried and the procedures by which they will be executed.
The detailed report describes how the war in 1971 in East Pakistan started with mass killings of many hundreds of thousands of Bengalis, accompanied by widespread torture with rapes designed to affect the ethnic balance and the subsequent exodus of millions of refugees. At the end, a few days before Pakistans foreseeable surrender came the most spiteful killings – of the professionals, teachers and community leaders who might have made a contribution to the nascent state of Bangladesh.
In 1973, the International Crimes (Tribunal) Act, drafted with the assistance of the International Commission of Jurists, established a procedure and a court for trying those accused of the crimes committed in the course of the 1971 attack on East Pakistan. It was not until 2010, after the Awami League had won the elections, that the Act was reactivated, amended and brought into operation with a tribunal.
A number of men associated with the Jamaat-e-Islami, a democratic political party whose leaders in 1971 supported the Pakistani army and opposed independence, were immediately detained for a lengthy period before being charged variously with genocide, crimes against humanity and war crimes: they were all convicted in the course of 2013 and most were sentenced to death. The trials continue today in relation to other accused and suspects are still being arrested.
According to Geoffrey Robertson QC during the press conference earlier today, we now have this paradox that although the court was set up entirely properly for a legitimate objective we seemed to have reached a stage where what it is doing is ordering the execution of the governments main opponents.
The trials have been accompanied by violent mass demonstrations, both by Awami League supporters who demanded death sentences for all accused, and by Jamaat supporters who demonstrated against the judgments of the Tribunal. Protests came also from foreign governments and human rights organisations, as the Bangladeshi government has eschewed all offers of international assistance, including that of UN legal advisers, because this help was contingent upon abandoning the sentence of death and on sticking to international fair trial standards.
The report concludes with the finding that the ICT is flawed, and that the only resolution is for the UN Security Council to develop an ad hoc international tribunal to hear the cases and to hold the primary perpetrators of the 1971 genocide, the senior officers of the Pakistan army, accountable for their actions.
Geoffrey Robertson QC is founder and head of Doughty Street Chambers, the UKs leading human rights practice, and a member of Doughty Street International in The Hague. He is a visiting Professor in Human Rights at Queen Mary College, University of London. He was the first President of the UN war crimes court in Sierra Leone.