Fast forward to the present day. Prosecuting local collaborators for crimes committed at Liberation emerged as a central campaign pledge of the Awami League and now-Prime Minister Sheikh Hasina Wajed during the 2008 elections when the Awami League “Grand Alliance” emerged triumphant. The law was not invoked until 2010 when authorities arrested four leading politicians from the rival Islamist political party, Jamaat-e-Islami. Jamaat-e-Islami had been banned from political participation following the 1971 war of independence, and its leaders went into exile in Pakistan. The ban was eventually lifted. The party revived, was mainstreamed, and eventually joined in multiparty alliances with, most prominently, the Bangladesh Nationalist Party (BNP). It is now the principal Islamist political party in Bangladesh and a key opponent to the majority Awami League. The most recent general elections were held on January 5, 2014. Jamaat-e-Islami was barred from participating, and the Bangladesh Nationalist Party (BNP) and other opposition parties chose to boycott the elections. As a result, 154 of 300 seats went uncontested, so Awami League candidates won by default. The rise of the Awami League, and the marginalization of any credible political opposition, has cleared the way for the government to launch targeted prosecutions against key political opponents under the 1973 Act.
Once prosecuting political opponents became policy, Parliament amended the 1973 Act several times to make it operational. The legislation, which mostly incorporates the Nuremberg/Tokyo definitions of the crimes and benefited from the assistance of international law experts, was quite forward leaning for its time in terms of substantive law. By today’s sensibilities, however, the legislation is outdated and does not reflect recent developments in the law occasioned by the work of the ad hoc criminal tribunals.
The real concerns, however, relate to a number of procedural infirmities contained in the statute itself and in amendments to the Constitution that deny procedural protections to individuals detained or prosecuted under the 1973 Act. For example, 1973 amendments to the Constitution protect the Act from legal attack. Notably, Article 47(3) states:
(3) Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.
Article 47A also withdrew certain procedural rights from individuals subject to Article 47(3)—including the right to enjoy the protection of the law, the prohibition of ex post facto prosecutions, the right to a speedy and public trial, and the right to challenge the court’s jurisdiction.
The legislation itself invalidates additional rights, including the right against self-incrimination (the statute provides that defendants shall not be excused from answering any question on the ground that the response will incriminate the suspect). Long pre-trial detentions have led the U.N. Working Group on Arbitrary Detention to declare that several defendants hve been subjected to arbitrary detention in violation of international law, notably the ICCPR. In addition, idiosyncratic Rules of Procedure and Evidence govern the Tribunal, so any protections contained in the normal criminal procedure code, including rights of appeal, are inapplicable. For example, the law imposes an obligation on the Appellate Division of the Supreme Court to dispose of any BICT appeal within 60 days—a tall order given that no interlocutory appeals are allowed. In practice, although the accused ostensibly enjoy the right to counsel of their choice, the Bangladesh government and Bar Association have made it virtually impossible for outside counsel to adequately represent their clients by, among other things, restricting their travel to the country and their presence in interrogations. Several trials—including that of Abdul Kalam Azad, the first case to go to verdict—have proceeded in absentia. A U.S. citizen, Ashrafuzzaman Khan, and a U.K. subject, Chowdhury Mueen-Uddin, have also been sentenced to death in absentia for crimes against humanity. Such trials are not, per se, contrary to international law, but defendants must be given a right to a retrial if and when they are apprehended. No defendant in his right mind would appear voluntarily before a tribunal so stacked against him.
Among other retrograde elements, on February 17, 2013, the International Crimes (Tribunals) (Amendment) Act of 2013 amended the law again to allow for the prosecution of “organizations” for their role in the 1971 War of Liberation. (There is some talk that the law may need to be amended anew to enable the prosecution of “parties” in addition to “organizations” if it is to serve its intended purpose). This baldly political move is aimed directly at Jamaat-e-Islami, notwithstanding that its continuity with its liberation-era predecessor is questionable. After the BICT sentenced Abdul Quadar Mollah, the assistant secretary-general of Jamaat-e-Islami, to life imprisonment for crimes against humanity in February 2013, the Act was further amended to allow the prosecution to appeal a sentence or a verdict of acquittal. The amendments were made retroactive. On the prosecutor’s appeal, the Supreme Court converted Mollah’s sentence from life imprisonment to death, a final sentence that does not admit the right of judicial appeal. Despite calls on December 11, 2013, from U.S. Secretary of State John Kerry and United Nations Secretary General Ban Ki Moon to Sheikh Hasina herself, Mollah became the first BICT defendant to be executed. He was hanged on December 12, 2013 after a last minute stay of execution was lifted, on the eve of the upcoming Victory Day celebrations. Indeed, trials and appeals proceeded at a breakneck pace in 2013, apparently in an effort to achieve results in advance of the January 2014 elections.
The BICT has also been mired in corruption allegations. In December 2012, The Economist broke the story, based upon leaked emails and recorded Skype conversations, that a BICT judge had been seeking outside advice on how to rule from the Brussels-based director of the Bangladesh Centre for Genocide Studies, who was also apparently collaborating with the prosecution. The leaked correspondence suggest that the government was pressuring the judges to issue their judgments more quickly. The judge eventually resigned, but the BICT nonetheless responded with threatened contempt of court charges against The Economist’s journalists. Other journalists and media outlets that have been critical of the BICT have also been hit with contempt charges.
Individually, these infirmities are deeply troubling. Collectively, they fundamentally undermine the fairness of the proceedings, especially given that the death penalty is on the table.
The international community initially supported this effort at historical justice, given the longstanding impunity stemming from the war of independence. Human Rights Watch, for example, called the trials an important and long overdue step to achieve justice for victims. The United Nations Development Programme (UNDP) offered assistance, and the European Union passed resolutions supporting the trials. However, this support soon soured when it was clear that the process had been corrupted and was more political than legal.
The United States’ position toward the BICT has been a guarded one. While acknowledging the need to address the atrocities committed during the war, the United States has also called for proceedings to be free, fair, transparent, and consistent with international and domestic due process standards. The United States Ambassador-at-Large for War Crimes Issues, Stephen Rapp (my former boss), has visited Bangladesh five times (most recently in August 2014) in an effort to bring the proceedings better into line with international standards. Before the trials began, he wrote an extensive analysis of the original legislation, which was later leaked to the press, setting forth his concerns and suggestions for improvements. He was later criticized for offering his views, even though they had been solicited by Bangladesh. Some of these suggestions—including the recognition of res judicata and double jeopardy, the right to a fair and public hearing with counsel of the defendant’s choice, placing the burden of proof on the prosecution, and establishing a system of witness protection—were at least partially implemented. Others—having to do with interlocutory appeals, interrogation rights, disclosure obligations on the prosecution, and enabling the participation of foreign lawyers in court—were disregarded. Now that proceedings are fully underway, the prospects of genuine legal reform are dim. The goal now seems to be to keep the defendants alive.
And What of the Birangonas?
The suffering of Bangladesh’s rape victims continues. Indeed, these women were twice made the victim. The first breach of their rights and dignity occurred when they were subjected to mass rape on a staggering scale. Although we will never have accurate numbers, all accounts suggest that tens of thousands of women were systematically kidnapped, raped, and mutilated. Many did not survive their ordeal. Those who did suffered a second kind of assault in the aftermath of the war. Rather than being treated with compassion, given medical and psychological assistance, receiving reparations, or getting access to meaningful justice, many survivors were instead silenced, ostracized by their families, and treated as pariahs in their own communities. The only medical services on offer were makeshift abortion clinics staffed by experts who were flown in to conduct late-term abortions. Many “war babies” who were not aborted were put up for international adoption. For many women, the only tangible recognition they received for what they had suffered were the plaques eventually bestowed on them. Although labeled “Birangonas” (war heroines), this supposed honorific turned out to be little more than a cruel hypocrisy. Many survivors continue to live in poverty and shame.
The propaganda value of violence against women has long been recognized. There is now the risk that these women—who for years have been hidden away, ignored, ostracized or worse—will be injured a third time when their legitimate claims for justice will be used to justify a deeply illegitimate process. They will be trotted out in support of the trials under the illusion that their stories matter. Once the victims have played their part in justifying a flawed process, they will be relegated back to the shadows once again. As criticism mounts about the BICT, Bangladesh’s Birangonas will come to realize that offering them the opportunity to achieve justice for what befell them was never the goal.