In a previous article I expressed my disagreement with Ms. Tureen Afroz regarding her criticism of the open letter that I sent to the honorable Prime Minister of Bangladesh Sheikh Hasina Wajed in which I questioned the decision to revive the International War Crimes Act 1973 and prosecute accused politicians for committing crimes against humanity 40 years ago, especially as this was taking place after the declaration of a general amnesty by Sheikh Mujib. I am not the only person who has questioned the revival of the International War Crimes Act 1973. Many others have voiced their concerns over the trials taking place in Bangladesh, including Human Rights Watch, Amnesty International, the International Bar Association War Crimes Committee and the International Center for Transitional Justice as well as many important personalities from the US, UK, and Muslim countries who have staunchly criticized these politically motivated trials. In my previous article, I explained that diplomacy and law are two different fields and that it is wrong to expect a diplomat to be an expert in international criminal law. As a career diplomat, I called for Bangladesh to forgive and forget. By highlighting the fact that the international crimes tribunal act was originally written to prosecute only members of the armed, defense and auxiliary forces, I was merely underlining the argument that it may be time to look to the future and not the past. I note with concern that the current process that has been put in place by the government of Bangladesh fails to address any notion of transitional justice, victim reparation or society integration. It would appear that the government's sole intention is to execute a handful of opposition leaders who have been selected for political reasons. This has nothing to do with justice and will, in my opinion, only serve to further divide the nation. Ms. Afroz has stated that the judicial process at the Tribunal is one “where conviction will be made only upon satisfactory and proper evidence. There is absolutely no scope for the said Tribunal to reach a decision on the basis of opinions and views, whether of someone in Bangladesh or abroad. Therefore, the trial must ensure justice by being fair and impartial”. There is no disputing the need for fairness, impartiality and satisfactory and proper evidence which is not based on opinions and views. However, it is my opinion that the procedure in place at the Tribunal in Bangladesh is seriously flawed and if not amended will lead to a significant miscarriage of justice. One does not need to be a legal expert to appreciate the obvious concern of the international community if such a process is permitted to proceed without restraint. Fairness in legal cases touches on many aspects of procedure. These will be addressed in terms of the right to challenge a tribunal, the right to appeal, adequate rules of disclosure, the right to remain silent, the right to be interviewed in the presence of counsel, the right to adequate time to prepare one's defense and the right to be present at one's trial. The Tribunal has the power to amend the rules of procedure at any time. This is a matter of concern and it is aggravated by the fact that the Tribunals are regulated by different sets of procedure. It provides that “these rules may be amended, altered, added or repealed by the Tribunal if it thinks it necessary and expedient for the smooth functioning of the Tribunal”. The uncertainty that flows from the Tribunal's power to amend the rules of procedure at will must be borne in mind during the analysis of the issues which follows. There is no right to challenge the jurisdiction of the Tribunal, or the act or the appointment of any individual judge. This is contrary to the international standards of practice under which a party to the proceedings must have the right to challenge the Tribunal or the prosecutor if he fears there is a conflict of interest. This right is insured by the international covenant on civil and political rights. The rule of procedures of the Tribunal allows for appeal on matters of law to the Appellate Division of the Supreme Court only after the conviction. Previously the time limit for an appeal was 60 days but it has been reduced to 30 days for judicial convenience. However, it is essential to fair trials for parties to be able to appeal key decisions during the trial process instead of waiting for a conviction. In relation to the fairness of proceedings before the court of Bangladesh, it is rather worrying that a justice of the High Court Division of the Supreme Court noted that a reasonable distinction could be drawn between the rights afforded to “ordinary citizens and other citizens accused of war crimes”. This is a deeply worrying statement that shows the sentiment being displayed by senior members of the judiciary. This is evidence that this process should have an international component to ensure that any question of partiality is removed. In a future article I shall explain how Ms. Afroz is not an entirely impartial observer in these matters.
— Dr. Ali Al-Ghamdi is a former Saudi diplomat who specializes in Southeast Asian affairs. He can be reached at [email protected]
